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Pl&lntiff - Appellant 

-^ - mi* 1« a» appeal by plaintiff fro« a Judgnant upon a 
dlr«ot>4rr«r<U.«t ^o»* dafandant in a papaoaal injury aotlon, 

Thapa la no anbetantlal dlaputa in tha eaterlal ©viaenoe 
«nd our inoulpy If whathar tha trial court aarraatly daaldad the 
lafal quaatlons vhlah aroea ucon tha faata* 

Plaintiff, anployad at a otshlar by tha aafandant, baoan* 
111 at woriL, atkad for nadlalna vhiah ««« p-li^an h«r by fallow 
anployaat, and tufferad •oaaat and oonYulalona at » raeult of whloh. 
8h« fell fpoa a tabla vhara aaaloyaai had pl&aad har In plaintiff's 
•tora» aavaraly injuring har shouldar. Madloal tattlsony shova 
that aha wai glTon an ovt'-r^doaa of otryohnlna whloh oaucad tha 
•patna and oonTulilons, Tha oartlao etlDulatad that olalntlff In 
har aaployaant and tha dafandant wara undar tha ^'orluian'' s Conpanas^tlon 
>^t« Tha Tltal qu«ttlon la whathar nlalntlfft* Injurlaa aroea out 
of and in tha oouraa of har anploymant. 

«a ahall flrtt dlapota of an aTidantlary oolnt. Plaintiff 
oontanda that tha oourt arronaouily adslttad tho original oonplalnt 
acalaat har and altat, imifiu: ▼. i^ollenbaoh . 180 111.222, In 
aup^pt of har pooltlon. Tha original ooatplalnt allagad that 
dofandant's ouatoa wab to ndalnlatar aadlolna to anoloyfoa who baoaaa 
ill In the etore; thut i^lalntlff baeaaa ill and raqueeted aadlolne; 
that aha had dona eo on other ooeaalone and been adnlnletared to; 
that defendant had a duty to exerolee phameoeutleal oa2*a no at not 
to injure her and haa Ylolated that duty by admlnletering to her 




N>S O 


:**"®^^ •^»c;«lii Ulitt»S%dU9 OR ai •n«4T 

,«;roal •At n&au 9^mM dtli^r ea<»if«)»tf.) iK§«x 

«f«i^ t»»eAXo ib&A «»«tc>X€(»» «tMhr aXcfel • mnl XX*1 9iie 

tliJal&X^i .Jfliec x'^4^i*a»fcjf^« «» lo «a©qvlA fan XI XXadbi a-^' 

irel;!jXqi!Roo X^iiX^i^o •A* b9$iiwiiii tX3U;8»JtotnN» ^ntf«» atdt i <^ »btt%fR09 

«X ,S«2,XXI OSX >jagMmCX,9l »▼ 3«3»At^ ,9»:rio bna n«i ^atUas* 

}»il» M^aXIts lfil4Xc?&}QR l&atg^lHo atff «aoXtlaei7 ■?«£! la #<xa<Mira 

aotaoad culw t»«»xoX^»a oi atsloXftae '^»;raXnX8a?JiH o;r a«v mo^^a&o «*;^aettJiata.t 

;aaial&0fl) iNMraaxi!iH»n ftaa XXX diR*ra«<f t1itiiXaX«r 9->^:r ;<^no.ta aitt ffX XXi 

;o'J b9i9i%lat9bm ernatf b»a tnolaaodo lafCTo nc oa mKab t$M aite fa/17 

irefi BA Oi a<s«o XA9XJiv«94»BiJUk| vaiontexa of x*»^ « bjtfi fwtaata^ fail* 

'tad ^;r $at'i%^»tnl« \^ %tub f »df jbaf aXolv baM b«a fact a*i»t<iX o} 


msdlelne of exoes-^ive ttryobnlne content; thrit defendant v»e 
nagligent In plaelng her on th» tabla from whieh It should havt 
for909en h«r G£>nTttlclans would naXa h»r fall; that as a <31reet 
result of ths strychnine produeing oonTUlalons, she fell and vae 
injured. This eount ir»s disaissed by the plaintiff who filed a^n 
aaended eonplalnt relying on an alleged oust(»i of defendant to 
edminister to the sioknost of ouatoaers who repuested first aid 
or eaergenoy attention. It is olesLr that by this amendment 
plaintiff sought to ooae within the rule of oases sited by her on 
the stain points diseussed hereinafter. In the Bollenbaah ease 
the evidisnss showed the attorney who pr9piLr9A the disputed pleadings 
did so undsr a nisapprehension of the faotSv Thnt factor is not 
present here and, according to resent deoisions of this court, 
the ruling of the trial court was proper. Bennett ▼. Auditoriua 
Bldg. Corp. 299 111. App. 139; Plodtien ▼. ii£l2al# 31^ ill. *^PP. *0. 

The trial eourt, after hearing the witneaees and penaitting 
defendant to read plaintiff's original oosplaint In sTidenee, 
decided thxt plaintiff's injury sross out of and in the course of 
her e«ploygient aa s suttter of law, and, accordingly, her tort 
action waa precluded by the act* 

Plaintiff contends the nuertion presented is novel in 
this 8tats and relies upon Volk ▼, City of Mew YorJt. 30 K, E. (2) 
096 and IsUJUXfia ▼. AHQrtfM Xfgt Cff., 82 N. H. 266. Defendant 
eontends that our '^upreae Court eases Ibsts deeided the question 
and plaintiff's oaaes ere inapplicable and not binding. In the 
2fiH flw^Cf s nurss wss given a deeosoosed aorphine eolution following 
sickness at her work, and the New York Court of Aopeels in reversing 
the decieion of a lower court held that the risk of the nurse's 
injury was one to which anyone receiving like treatment at the 
hospital would have been subjected; thnt the injury was not mads 

yS? jXIcT ttrt 9:^16 titter 3fi<»i^« Ivvo^d Tsii a»»»^^ol 
:ft» IX*"! »«Jt ,9nci«X«VB©© 3^i«»l>oi'". <*ntti^oxtf -^"^ 

rs^ JTfieJtoatftA to «e»»AOG fr<»:^«XXs oa fi0 iisitX»^ 7«iaX<$«e(> 6»6a««i.T 
die' T^^Xt bvii'Mp^'t earn m^mtfitrmo le »»«fi3l»lft n^ oi 'mSttXalm^ 

;MudMHuij& eXit# %^ iMtf '«£s«|a si $1 »n&iStx9i$ti ^9i»9g<x»si» n« 
at> i»il t^ l«»^J» a»S3« lo «Xi«f ©xl* aisLfiv dflws oJ ;$^|ti9« "tt|«ai 

ton 9X -ct^^t^at laiff »a«««l Ml* ')• m^^9^i»%!^^0tim m ^•Amu •• kl' 

miMMM. qen^^ saw »^»©i> lAirr* td^ ^o i^Txn fSSf 

iic^:r !««£}<;'> «£!7 &eaitt€>& «Vifl(si t^vsa tf^snev^ ^mgnt^^ ta^ isilf alMHrtAe* 
dei:^ «|tf«&Xlq^«M»«s^ *«« a«S90 a'tlXtiiiaXf Aa 

^l'if&£le\ miiiite» »nM*inom bi^<tk\«sv»^'»h a t»rl^ dfir »«^ya « ^ ^f Xft^ 


moT9 llk9lj bjr tli* faot of h»r «iiplojti«Bt »wA tint It did not &rl»« 

ettt of or in th« eoure« of her •mplojaent • fn« ni>rc« bad b89ii 

treated la the Norses* Inflraary, vdiere the ordlnfiry rjersen would 

not >»e treated and by Tirtae of her agreeaent of Mq^loynent, whioh 

provided nroper vedieel «a4 eurirloal attention, llie Hev Mampehire 

oase decided that a saater who aesiiie^t to aid « sielc serv&at has 

the ohligstion to use eare in treeting the patient. 

It a^ppeare froa the eTidenoe th&t plaintiff had suffered 

indigestion on preTiottS ooeasione while et wox^ and she eays that 

she took nedieine on the day of the aeeident so that she (»ould 

go on with her work and she did oontinue working. In seeking relief 

froa her illness as she did« plaintiff w^^s doing scMBSthing incidental 

to her enploynent jtnd neeestary to her health an^l ooafort and, 

consequently, did not withdraw herself froa the course of her 

eaploynent. JMiOkatLSSUJ^o, ▼. Xfl^ttf^n»l C<?fflft^#f4.<?^^i 360 111. 92, 

96; lortfr v. la^wttiiMi fl— - 392 111. 392. In the latter ease, an 

enployee salesaaa, while riding a train on business, was injured 

when lug^jrags fell upon hia while he was engaged with a toothpick, 

reaoTing a eeed froa hie tooth. The injury was held to haw* arisen 

out of and in the course of his eaploytsent. The Masursky case. 

364 111. 445, oited by plaintiff, is not ar^plior.ble here, heccuse 

though the eaployee was injiared on his eaployer*s Dreaiees, the 

injury was said nojt/hawe arisen out of his «sployaent because he 

vss engfiged in doing work on his o%m car and for his own benefit. 

Plaintiff, an eaployee who was ill, took aedicine so 

she could oontinue wort^, the aedicine caused eonYUlsions which 

resulted in her injury, end we hold the injury arose out of and in 

the eourse of her eaploynent. Her tort action is precluded by the 

*orkaen*s Coarpensation Aet and the court's action in directing 

the Terdiot for the defendant was proper. There was no evidence 

0$4i &-iinat> 

t^i -fc!^© O0.1 •f»af«4 v-«i.MtX<>? ?Ofl ii>i< ,"Ki- '©• 

' i4 IfiO^I... S4MMI « SK JbVtMM. 


«»«Utf®«W# ««>«ffi,iS •^•.- 



*I^MI»# '•#' '^^' 



In the r«eerdl froa wmeh any euttoa of i3»ft»nd$at*e siJbBliiisterlzig 
Aid te t^« pttblid oaa b« lBftrr«d, aor any evld«ne9 th«t aji« paid 
for tht sedielnft adoinlster^d to h^r, Th« «Tl:39noe on tha otlmr 
lUURd l8 tbat oa prior oaoaeioRB eh« hsd kxxft r9Ctt9Sted and b«en 
gfeTta aedlsjil attention. In vlev of ta«e«» een9ideratlon», neither 

tii« M*^ ^^fffft^iFT Iftlft Aor the unconTlnolBt itW IotH M&A «>^ 


FlAintiff eontende, vithottt serit, that the had e«ac«d 
working at the tiae of her injury, va« aot «in eaployee &nd, 
•oneeauently, did not ooat vlthln the Aet« It le trae she turned 
the eego over to another eaployee and indiosted «o intention of 
going hoae, nererthelese, the adoite aho took Uui aodielno so that 
she oould eontinue vork, and did reatne vork after the first doeo* 
v« eannot fujr th^^t by seekini; eoafort or the aid of her eaoloyeea, 
after her siekneas grew worse, th-^t she thereby was no longer an 
eaployec aay aore th«a ehe voald hsTo eeased being en employee 
had she int'>rrupted her vork for any other parpeee of personal eoafort, 

Plaintiff says that had she filed a olaia under the Aot, 
Aofeadant voald hoTo adopted her theories of this esse* In ansver, 
dofendsnts point out that the aooiaent oecurred July 30, 1936; 
defendant filed its ansver "February 17, 1939; and plaintiff had fire 
aonths thereafter in idiioh to file her elaia under the Aot. 

Plaintiff further urges that sines the allesstion, th&t 
the fieeident is ooapeasfible under the Aot, is an affiraative defense, 
the burden of proof w&s on the defendant to prove the allegation by 
produetion of faots aad that the defendant neither offered nor 
atteapted to introduse any OTidenoo to shov tfeat plaintiff's illness 
and injury were inoidental to her eaployment, Defen<3ant ansvers, 
sad we agree, th^t sinoe plaintiff's ova testimony produoed the 
foots, dofeadaat ves thereby reliered of the burdea. 


In eonoluslon, m ttrt of the opinion ttuit th« tinfortunat* 
•eeidtnt In this e«0« is suDjeot to th« ^ort»9n*8 Compone&tion ^t, 
and, fiooordlngly, th« initant aotion It not av«ll&bl9 to her, fhe 
aation of th« trial oonrt vaa propmr and JtiAgatnt for dafendant ie 

F«/« jmj> watL, J. coNotm, 




Recelver-A pellant. 




Plalntlf f-App«i le© 

317 I.A. 149 

COOK 0'fflUNTX, 


FREDERICK: A. SMXTir, et al»^ 



J\xne 9, 1939, plaintiff, Clara Young, filed her bill to 
foreclose a mortgage on premises described In the bill of complaint 
also known as 1300-lG Floumoy Strept In the City of Chicago, On 
June 10, on her motion^ Judge Williams appointed Patek r ceiver 
of the piremises. He qualified and took possession. The premises 
were improved by a building about fifty jrears old, consisting of 
eighteen flats, store heated. The building was in a dilapidated 
condition, as plaintiff's complaint showed, she alleging that its 
condition was such that it would be condemned and ordered wrecked 
by the City of Chicago* Subsequent orders by Jud es Donald McKlnlay 
and Lupe authorised the receiver to make repairs and directed the 
i<^8uance of receiver's certificates to secure payment therefor. 
Plaintiff's mortgage was for the sua of $24,000 on which there is 

now about $33,000 due and unpaid, and unpaid taxes amount to about 

Plaintiff's solicitor in her suit was Mr.Orossman. On July 13, 
1940, she procured an order of substitution. On the 18th of July 
she filed her petition praying that the receiver might be removed. 
In quite general terms she averred the reoiiver had made miare- 
preeentations to the court, had made repairs without authority 
and was paying excessive sums for work, labor and material. The 
receiver answered denying the material avenaent. of the petition. 




i *v 



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;tr'lnffTrr lid sdi ni Bscfltossio aeelMsiq 0.0 ^^sagftotn s aaoloe-xol 

^ogaolilO "io \;*iD Sff* al*€ ■^oiriifoX'? ©I-OOSI sa flwoea o«£a 

"T?ivi90 1 ^«;tB'5 A©:^islcqqs -3xifcBlIIi'f/ ©^Bwl. ^^aoltoin iroif no tOX sbewX, 

a?>aIfi?Q'xq sxlT ,nolf»f!9S8oq :^co* bnn b^ltllf^up sK «8»eiia&rt«7 Sfi'd" \o 

lo gnWalsfsco tf^^o aiBSJi x^lll &uodi£i ^nlbltud m x<f Bsvoiqsii &isir 

l>©;?£.f>±qBXXfi iw giijtbXlirtf s«fT ,hB^s&ii .«yv0il-e ^etisXl nf^^Jjcfgia 

J&»io»iw £>9is6io baa fiacae&ftoo ©ef J&Xwow tl iMt dnim b&vs aolilfitioo 
XBLcillQd MjBfloa 8 9- JbffX. X'6 ai^'Mo JnejjpssduiR »ossolc(0 to Tt^iO sa;f Y^^ 

si 9*19X4* fl©irfw no C00e>Sf 1« nils sdi 10I ««» a^g-ss^tiom e'tliitnl&X*! 

tfuocfs o^r *m/ca© araxs^r feXsqcu bfiiB ,&ij5qnu fjnii •uS OOOtSSS ^uods won 

.OOa tSJ?. 

^ai ^X«X» flO .flsaraBonO.tM saw d-JLua lari ni noitloJtXoa a ' tlictnliil'i 

%£u[, to rfd-8X «ri;t no ^tioituHitidutsi lo i^bto nn b^ttsociq wis tO*8I 

,b6T0fli?i -^'d Jrisiar levlsoni sxlJ :rari:f gai'^tAiq noXvTXifeq is«{ l)?Xil Mta 

-eiaia 9ft«ffl -Bw* i«vi*o«'i Stttf l>OTteva arfn ssMPt Xet-ifiss sd-X«P fli 

9rfT ,Xslie*«in bn& ^oH&l v^-^ow lot emwa ovlsasoxe sn^^sq i«fr *«» 
.nc.l^iJeq exit to s^^n^fln.v* Xi^l^etTBrn s^,3 ^nHaet i>9^ew««i» .terloo.^ 


The cause was referred to a master by Judge Nelson. The master |, 

took the evidence and reported the allegations of the petition had n<* 

heeh proved. He recommended the petition he dlemlssed. Twenty-nine 

ohjectione were filed by plaintiff* These were overruled by the 

master and by order of the chancellor stood as exceptions before 

him. On May 7, 1941, the chancellor without (so far as the record 

shows) giving a hearing to the parties, entered an order as follows: 

"That A. H. Patek be and he is hereby censured 
for hie acts a-^d a-^tlons as an officer of this 
Court in this cause; it is further ordered that 
any and all claims which Patek, formr-.^ly receiver 
herein, may have or claim to have against the 
receivership property herein, be and the same are 
hereby held to be invalid and void; further 
ordered that the final accoxmt and report of 
Pat<»k, Receiver, be and the same is hereby approved 
but only upon the condition and understanding that 
all claims' which he has or may claim to have, either 
prrsonally or as receiver herein, in any manner 
growing ©ut of his receivership in this cause, are 
hereby denied, waived and disallowed. •• 

Patek laaB appealed from this order and from a subsequent order of 
November 17, 1941, denying his petition to set it aside. 

The master specifically found that the plaintiff had knowledge 
of the appointment of Patek as receiver; that "receiver had the 
building Inspected by oompetemt engineers, contractors imd 
architects, obtained estimates for the cost of rehabilitating and 
placing same in a condition where it could be rented; when said 
examination was made most doors were gone, plumbing had been 
ripped out, floors were faulty, the wainscotting was largely missing , 
much of the plaster was off, the apartments were unpalnted, the wiring 
had been ripped out and the building was almost entirely uninhabitable; 
that the estimate made by the engineers, contractors and architects 
for the rehabilitation »wae. so large that Receiver determined 
to rehabilitate said premises piecemeal in order to keep costs down; 

9nifl-t;?n>'v<'T »J&«eRlffl8iJb etf flol;ti;cf5>q arid' J&eBnsinraooDi eH •Asvoiq ile»<f 
•il^ YC1 &£»Iim:«vo msv 9c»xfr ^'i^-tsJ'fliJsXq NJCf Jill's s»tew »aoi*09t,cfo 

Btoo^jT srijt ss 'SjBl ©s) Jfc'OfiJiw *xoIieofLiiri© srir? tl^GI ^T xa^- flO ^ariil 

^M^ lo lev-iitic 113 ais aoolJAA 5;'j& s*o« slri tot 
«Tf>vi:!?0€rf •^lT<*firxct , rioixiw rst'IbIo lis fme , 

>..■ ■ ; .ftrxs tli^-vtix .. ..... 

... .-vv-.^ ■. .<i ■'■■■ ".'• ■-•-•■ 'MlJ htx e€ xt'^rt-^i,^:.. i^- .•* 

TT-xfcJis v"V-.-xi ...0 .^i ^,.- ,..-4T to asri si* £i"oirf« «?Ei- ■■" ''■ 
•xfl.' nsm XR& nl ^nlBiBSi isvi^osT: as to ^.I 
. » -. ;■ -isii at qlri^"-''7lBo2't ultl to ^ve ■;^ 
•• **^woXXa3ll) i)n* fisviBW ,l)«ifl©b ^cfeiarf 

.*!>i8s ^1 i»9 cmT nel#jt#«cr alxi 8Jes±VS»f> tX*^'X i^I. t dasvoM 

• 'f:? fe^'Tr'^Ti'^o^t" ^-mJ* jtovifsoOT as tni.^<i to ^neaf^tatoqq© fid* ^o 

Rn,s gffl*a*l£Mjari«!«[ lo *8oo eel* 'lol o^tamtitm bmis:ffSo ,Bd«s;rXrfo^ij 

4 gniiTPlffi x.[e>?ri afiX:f:too9f?lis* ©rft ,TtXi/i»t s^9w d-xooXt ,*tfO bftqql^ 

^nlilw sjriS ,r=..:;;u . 'ts* ©cTneiBJ^sqia erirf ,tto saw i^JTs^Xq 9di lo i«Mm 
;8XcfAJ?ldMci: '©•£« -^sw IJaiSllucf s^i^ fiflB Ju6 iy»qqit m^ bBd 

r..,Vr.^^:»t*6 t»vJt*o»« *««:? e>St»X'08 ^*** noltBJlXldBrien «il* «xot 



for that purpose he obtained nece?r-ary orders from Court; hat on 

an a 

June 30, 1939, he obtained/ ord?^r to Issue/ Receiver 's Certificate for 

S2, 500,00 which he could dlBCount at ten per cent; that he was 

unable to discount said certificate and that he advanced his own money 

for such rehabilitation, and since then has advanced further monies 

as shown by Receiver's current account; * * * that the minimum amount 

estimated by engineers, contractors and architects was the sum of 

$6,500«00, that the amoimt expended was much less than the lowest 

estimate; that the Receiver acted in good faith In rehabilitating 

said building, put It In a rentable condition to preserve whatever 

equity thez^ might be in said building for the use and benefit of 

Clara Young, Petitioner, * ♦ « that there is no pr of in the record 

supporting the averments contained in the pejiition that the reasonable 

cost of completing all necessary reconditioning of raid pr perty 

would amount to lees than $1,800.00, nor ie there any proof in the 

record supporting any of the averments in the Petition that Receiver 

has misrepresented any fact or facta to the Court or that Receiver 

was not acting in good faith; * * * that the work done by the Receiver 

in the preservation and rehabilitation of said premises in making 

same rentable %as necessary and was done pursuant to proper orders 

of this Court; that all materials reported were actually purchased 

and paid for and all of th^ labor hired was essential and was used in 

the rehabilitation and preservation of Bald premises; • +^ * that no 

evidence was offered that any single or specific Item was not 

necessary or not actually used in the repair and restoration of said 

premises* " 

Neither in their brief nor upon oral argument did the 

plaintiff point out any specific item or items concerning which the 

re elver had made any misrepresentation, or the expenditures were 

unwise or unneceFsary* 

no >s : .;roO moit eielv^ or^n h^atB&do @f! <5«oqii;q ;f3rf.t tot 

1 >q ns? i^i; jfluoaelb SJjuoo ».cl rifiMv GO.OOS^Sl 

jTffi ? ' OBJii risel xfs>i/ni gsw be&neqxs ^nuom& ericJ" itJftti* ,00»006»3i5 

. Iltsaedi I>jk>; 1 ufiJ^^i-^wr' t *f%I« »ieri;f X^lypa 

TtJ-x -^ q Ttq Jbisp to '^ninolilbaootn. xtm-^^oon 11^ Sjrtl^fsXqaico \o Jaco 
adcf ni too^q %n& en^d^ ?.l ion ^00, 008,1$ aedt sael o* icsjcmu Mirow 

<ri«oaH ariif ijcf 9iic& ifow ©£[;? j-ar'. jxidlBl J&003 al ^l^a* *on e«« 

Sfii:SBai nt aaaiffisiq -51fta 1:o iicid^JBJilicJsiion Ms aoii^sviaae^q wia^ al 

JB>«aA£loaoq t"^XBWd"oii ©is^v 5e:J-*ioqei aXj5l"S9i#.««K XIj5 twft jJ'iwoO mttit \o 

ai b&9U tim ktm i-iltam-^- 'xlii 'loc . '■ ii& fena not blaq ba& 

on JjQXlt - ' ^-sliat?^^, o itoldATTssB ?»«!£^ fijte. iJol*«*xIl'Jads*t ad* 

Jon 3BW scti.Tj^ oitXoeqs "xo eXsnia X^.^ is&d^ feftis'ito s^sw «>on^Mv? 

an;f bib inaiBirp/ cK'qu aoii leltd liarf* ni Tt.dd'iftii 

sdJ flolxlw gnifi^fioftoo 9&sil to m4\it •itioeqa ^n* ^uo iaiwt ttWnljsXq 


The brief of plaintiff states: 

"It 1% the theory of Plaintiff that the Lower Court 
has the inherent right to deal with its om Receiver 
and in its eound discretion to censor said officer 
when the facts and conduct of said officer warrant 
said action, * 

It will be conceded that the right to censure or remove a receiver 

depends upon the facts* In the Instant case no such facts/appear. 

The petition predicated its demand for hli removal upon hl« alleged 

wro igdoing, which wag denied by him. The master's report exhonorated 

him from these charges and recommended that he be not removed* The 

court ovrruled that reoomTr.endation and ordered him removed and 

also that the consideration of all the master's report be continued. 

The court should not have overruled the recommendation of the master 

before considering the facts on which that recommendation was based* 

The weight to be given to the report of a master has be n often 
stated in the decisionsy which are not unlfona* The cases are 
collected in Phillips v, W. Q, N*. Inc . 307 111, App.l, 
Wechsler v* Oldwlt*, 250 111* App* 136, Paeedaeh v* Auw» 364, 111, 
491, and Li twin v* Litwin t 375 111. 96, jTUk_v. Mruk, 379 111, 394* 

The orders app a led from will be reversed and the cause 
remanded with directions to dismiss plaintiff's petition. 


O'Connor and MoSurely, JJ,, concur. 

*iiaB«rf 3«if aoltf«JbjG0ffimc»s>f mJtjdw hc »3'®.&!t »£{* lic^'isfclaaoo sw«t«tf 

^l^m/ . ^'Or, . . &£il . »?.:: j.^ #W *v aglXXigt^i xsi aeJooIXeo 

,^a^ ,W|iA ,v ^laMlMl toSI «q^A ^il OSS tSvti:y.&i--3 *v iBl&d&^V 

«ay«i» 9«f;J bns^ .i>&Bt&y noil feslMQ'?* a«t«ft'aci «ff 

^m.l*ri^»q 8'ttia«i»Iq asizsali) o^ Btiol^^mM A^Xv b^hUJmw^ 

.•XiJOfto-o ««%V:«fX.»%iv8M £es *i©fia©0'0 


^ _ Appellant, ) AiPEAL FROM 

▼s» """"'■"■^---.... ^-r"'' SUPKRXOR cotmr, 

OF CHICAQO, a oorporatloa, ) ''^'•'^-^^_, 

Appellee. ) 


Plaintiff bi^jught suit seeking damagea for Injuries said 
to hare been received while a guest In the defendant's h&t<^l 
because of the negligent operation of one of Its elevators In which 
he was a pas^engi=>t • Defendant noTSd to strike the complaint on the 
ground that It was and has lAng hem duly Incorporated under the 
laws of Illinois as a charitable or ele^^iaosynarx Institution and 
hence Is not liable for acts of negligence on the part of Its 
employes. The motion to strike was allowed and plaintiff appeals 
to this court, 

F^aiatlff first asserts there was no eyldence as to the 
charitable character of defendant and that the court ex^oneously 
asfrumed this to be a f.ct. To this defendant replies that tjtie record 
shows plaintiff walrsd his right to urge this and It has filed a 
motion to strike this point from plaintiff's brief « It has also 
filed a sup: Ismental record which conclusively shows that plaintiff's 
counsr^l on the trial adidtted the charitable character of defendant. 
He repeatedly stated he waived any procedural questl jn and did not 
deny that defendant waa a charitable Institution, "because It has 
be n ruled on by the Supreme court. It would be foftllsh for me to 
test It out agalna " In Lewy v. .^tanaard tae vator^ C^ ^ 206 111, 296, 
where a similar situation arose, the court said that the attorney 
for the defendant had stated In open court upon the trial that he 
would not make a certain claim against the plelntlff ; that It was a 
well settled rule that counsel could not In the court of review taks 



mm .. 



J v;* J« "5 'r^.tS 7.'. x.iw 



a*2 t ac »0fi«^lXs»c 1. "iX^&il ton ai m»jim( 

^tsiiiS 3*ltJtitfflai^ men! :|-«iGq aljfsf <«ti««?a ©* acitfoflf 

i'Gn bJtej ba& n i?Rai/p liiia^bs^oiq xc« b^vl&a t^d f^A^ti xlh9tM^vs 9B 

ta«2 ,1X1 «es « ^oS lod-gysXl-i Me.n^^.; ^.^ _rtl "^1*8^ tuo tt i»»t 

«xi tmit lalx^ 'idi noqv ;riJJOO neac «X fieiTiKra ftad *JiA6o«l»ft •** lol 
td»i wmtfv^ to ;rii»oo «ii^^ b1 *on blwoo Insewoo *in(* ^XtM 6»Xli«« XI'** 

a poiltion entirely Inconelstent with hie position on the trial, 
W« hold th&t plaintiff waived any question ag to the character of 
def '^ndant* 

The motion of defen ant to strike this point from plaintiff's 
brief ivae reserved to the hearing* As what we have Just eaid makes 
this motion unnecessary* it will he so ordered. 

Moreover the charitable character of the defendant Is Judicially 
known to this court. In an opinion in People v« Y« i>., 0> A» . 365 
111. 118f the character of the hotel building in which the alleged 
injuries to plaintiff were received was fully examined and after an 
emtensive survey the court held that in operating this hotel the 
defendant was engaged in a charitable function. Courts will take 
Judicial notice of matters that are In the general knowledge and 
which are an outstanding contemporary fact* Atchison T, & ::::, F« Ry« 
£a. V. U. S . , 284 U, S. 248, and Straus v, Chicago T> AT, Go. 273 
111. App. 63 » 

A large number of cases support the proposition that, whatever 
the law may be In other states, in Illinois a charitable institution 
la not liable for p^^rsonal injuries caused by the negligence of Its 
servants pr agents, and this is true althou^ the injuz*ed party paid 
for its s<=rvlces4 In People v, Y. aa. C. A. , above cited, the court 
said that the institution did not lose its charitable character by 
reason of the fact that the recipients of its benefits were required 
to pay for them, as no profit Is made by the institution and the 
amounts so received ar apolied in furthering its charitable purposes. 
To the eamebeffect m&e the decision in parkft v, Northwegtarn 
gnlversity. 218 111, 38X, In MSJB^ ▼• Chicago Lying-in Hospital . 
247 111. App, 331, (affirm' d in 35C 111, 42) our opinion cites a 
large number of eases and affirmed the trial court in sustaining a 
demurrer to plaintiff's complaint seeking to recover damages sustained 


«»3£/ta Miaa tsul 9Vj^ 9» ^aKw a/i ,|^iti:°s» r jjetrifflBs'i.fiijiHf l»i*trf 

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J&age .1 ^^Ibljttfd I?>*Qii erf* to itstetmAda sd? »8IX «XII 

hSL& sjgoslwoftit X/stac-: -jwss? to 9©i;t©« Xaloib^t 

tV^ «,t 1?*^. /^ *^ aoaiaatf a . vjt^noa^^^RQQ ^^Iha&i^tuo as e^* ttelda 

StS ,eO , ,3! ,i yl oyjsoMC . , . .0 *8£ « « f *U .v .££ 

«5$ .qqA .III 

ii*?«?j8ri[w %3j&.>q0r£g acid .j^oqciD* »«««» to 's»dig«n ©jfij&I A 

atfXi-y^iJsia -asfsi-liyMio *. tO!s|«;f« 'iHx-ltt, ei £«f %aA w«X sil* 

R.: 5Xiiff,nl X*sKoe^&q lol 9X<1«XI Son •! 

Aijiq xitJm h^'tuiTil ?Ei* %ao«^i.^ l Mlsi^ ban ^tRV^& nq •*iu«ri e 

*iif©o sd;^ cj<*?iv t,A yO. *\ ,^% .V $i,c^9a^.; aJ .teeiyr^a a#l tot 

lE^ •xa^r&^^jBfi; soX iQR bib m>liismBal 9dtt t^di £i«a 

feJWiirp -taelqXofvf di-ia jriul^f *osl er{;f to fioaAsn 

atfi atW ,c ; : i. iito-xq on a» «««£i* Ttot X«^ ®* 

^ ^^ fll aciXf»i»sfe «£(* !»«• ^a9tt9'^6«fta ad^ ol 

*L. MiSMiiLi:.:.^ ■ . • - .■■ *^3S *^^^ ®-^ Bi^^laice/XilP 

:s 3©;»i -i«o (a^ . iTfitt*) tl&Z .gcfA .XXI T*3 

jR %alnt^9!^ ?aancXtt.« 6«» aaa^tt lo tnimftt t^yxaX 


by reason of the negligence of defendant , a oharitable hospital^ 
although he had paid an adequate fee for aeryloes. 

Counsel for plaintiff atten^ts to distinguish the eases cited 
by defendant but is not convinving in this respect. He also as.^erts 
that since the opinion in the Hoayan case the weight of authority 
is against the conclusion there announced* We do not agree with 
thi8» and in the recent case of Peopl^ e y» Y. M, C« A. ^ above citedj 
the immunity of defendant against actions in tort is again 
recognized, A still more recent case is Myers t, Y. M. C« A. of 
Quinoy. 316 111. App* 177, wnere an extended opinion supports in 
eyery respect the position aboye stated^ 

The action of the trial court in striking the complaint was 
in accordance with the law of this state, and it is affirmed. 


C* Connor, J., concurs* 

Matohett, P. J., tooJc no part in this case. 

bn^iii iimt^li: :i<:/^9ti» '^.tlintmlq tcl iMH^tiv 


♦ - .»i_ * " 


I'ssao aJLad sUL t*imi on Ac*-* t,«t ,«!■ * 






317 1^.150 






This is an appeal by plaintiff from an order qtmshing a 
writ of capias ad aatisfaoiendma. 

Plaintiff brought suit charging defendant with the oonve sion 
of money and had Judgment for $3,003, which on appeal was 
affirmed by this court. (303 111, App, 172,) 

The writ of capias was issued and defendant was imprisoned 
for a short time* A motion was made to quash the writ, which was 

Defendant in his petition and motion to quash alleged that 
the writ ras invalid for at least two reasons. Section 5, ch. 77, 
111, Rev, Stats. proTides that no capias shall issue against the 
defendant "except when the defendant shall refuse to deliver up his 

estate fop the benefit of his creditors, ■ The record shows that 
the capias was issued without any showing to this effect, but 
this is not necessary, Pappae r. Reabua . 299 111, App, 499, 
Brandtjen & Kluge.Inc. v. Forgue, 299 111, App,585. 

The second point made is that under the decision in Ingalls,, 
▼• fi^M-logt 373 111, 404, a capias shall not issue unless the 
Judgment itself finds that malice was the gist of tne action upon 
which Judgment wag entered. The Judgment in the present case does 
not contain such a finding. For this reason the court properly 
quashed the writ, Peiffer ▼, French, 306 111. App. 326. 

The order of the Circuit court is affirmed. 

Matchett, P. J,, and O'Connor, J., concur. 


^ITMUOO 2000 



tdtMrnA OTIV 




aBw IssQcja no sioisiv ^300,3$ lol ino^bul bMi !baB Xf^aom to 
(*2VI »:ic[A ^III 505) .Jiwoo atJUf;? t^ l>9irii^ls 
bBiiOBtTor -i unsaaetefo bn& feewsal bbw selqao Tto Ji-sw ©riT 

asw xfoixiw ttf'lnw ©fit dssjup o;t e.&JssE asw iraoUoffi A ,ami;J" ^lodn, a tot 

s£{d- ^sKiBga sussl Ilsrfa aslq^o on •t.^ri:}' asSlvo-xq »a*i5*a .vaK »III 
airi qtr isvJtlsL oif aBi/t'i Ilada ;txxsJDi!9l©.5 9d$ r!:8riw tqsox©* *fljBbii3"isJb 

3-J3XI* 3is'GifB l>ioo9i srIT « ,aio;f if-^io slii to Jilsnsd eii;^ not e;fatae 
t"^*^'^ *Q'qA ,111 6C;2 tsMBSK ,v g, j K.Ciq.e9; ♦Tneaeooen d-ofl al slri* 

,a8a*qqA ,111 ees tMSSSl •''^ < 'MLL§2iii^jLs2lilfiS3S 

8l.'"..&Sg I Hi noiBlopr> c-ii^t 'cpjjrju tfari^r al a&BS ^JnJloq f)noo9a silT 

noqii nc-fd-OJB 'i; :-B ox^^ «^^ 90ll«ffl t^MS^ aAnll llsatl *fl9«sl>ixt 

.98-!; .qqA .III 30S ^donsrS •▼ rtatllDl .^irtw adt A^dsAjrp 



^.T, t'jonnoD^D bm-. ,.L .«5 »;f*sdo:^AM 



, 1 










'*«»=» / 


Plaintiff brought suit alleging a written guaranty by the 
defendant tf payment of the hospital bill of Margaret McCormlck, 
his client, and upon trial by the court had Judgment for !ill745,30, 
froB which defendant appeals. 

January 13, 1938 Miss. MoCormiok was injured in an automobile 
accident and taken to plaintiff's hospital ahd cared for there; 
defendant, an attorney, wa« retained to represent her in her suit 
for damages for injuries caused by the accident. 

As the bill for Miss, MoCormiok' s hospitalisation kept rising, 
plaintiff's secretary and treasurer, Clarence T, Johnson, had a number 
of talks with defendant about the payment to plaintiff for these 
services. In May 1938 Johnson told defendant that the hospital could 
not "hold the bag any longer" unless the plaintiff had assurance that 
the bill would be paid. Defendant told him there was plenty of 
liability to take care of everybody and that he would send a letter 
$ha.t plaintiff's bill would be taken care of in the event of a 
settlement of his client's claims. 

The letter upon which this suit is based was received during 
the early part of June, 1938. The letterhead has the name of 
defendant with his office address in Chicago and is directed to the 
plaintiff. It reads as follows? 

©ill- -^cf ^^^niS'iiiwg Ji®**i»rft- jb sej^eXlJa 5li»9 #ri'«M©rr<J Aliii^niaXsi 

eOo»£.^TX:| tot ;rn9iS§Au.t ^^ ^-xwoo 6ri<J t«f lAili" ffoqw. feas ,JiX9iXo aid 

♦sXaQOQj* ;tniSii«€»t©S deMw aoi* 

; 6^913*3^ •sc-'i J&i9Tfto feria XaJiqeo4 a ♦l:'ii;J^jKX5Xq e^ aoiia? has tnsjbiooA 
iJlMu tan' ai imi ^Hsaa^qs^ o;f MiiX*^®* i^ ^x&atGi&a m ^tttjsha»t9b 

*j8rid- aofys^wssA l>^ llXSfTsiBXq e*i^ »8sXiSif "^iSgKoX -^JOfi 3Cs4 «ud[f ftlofi* ton 

li^' fsi tc »t»© nsCftj stf Jbloow IXXtf a*'ltXtfflX»Xq- iatit 
^ jiiliilo a'^nsilf; alrf to *c»BdX;>3^»a 
T^nliirfc f)9vX»»««i saw Se^ad si *Xira ttiii^ xCoiii» «Wr<5tf 5f^*stii •rfT 

to sfiiisuH $d1 B^ bnm'i'^ti&l «ri'i' •QS'PX * ^hcHj to J-x^q ^Xi*e ©n'JT 



Thla is to confli?m my telephone co versatlon 
with you today relative to Mies iiicCoxnniol:, a 
patient In your hospital* 

You are hereby assured that all hospital bills 
will be paid out of the proceeds of whatever may 
be received as a result of the prosecution of her 
claim for Injuries sustained on January 13, 1938, 

In view of the serious In.urles sustained and 
the unquestionable liability of the defend nt and 
Its ability to t>ay, there doesn't appear to be any 
question but wiiat there will be ampljr sufficient 
to pay for all of the hospital and Ather charge e» 

Yours very truly, 

Theodore Levin (sipped) 

Plaintiff then permitted Miss McCormlck to remain in the hospital 
until she was discharged on November 17, 1938, At this tiito 
plaintiff's bill was 81743.30, and had not been paid. 

Defendant subsequently settled hit client's case, receiving 
$6500, which was paid to hlm« He testified that he gave Miss 
McCormlck $2600 "at her insistence," Defendant rp tainod for his 
services 12700, At h^^r request 1^500 was paid "to some man" who 
defendant said had befriended her, and ^459, 23 was paid to her 
doctor. Nothing was paid to the plaintiff hospital. 

Defendant airgues that the letter does not constitute a 
guaranty; that it is merely an assurance of the intention of Miss 
MoCormiok to pay her hospital bill. In construing contracts of 
gtiaranty the same rules are applied as in the case of other contracts 
to detenaine and give effect to the Intention of the parties. 
Reasonable interpretation of the language employed should be given 
in the light of the attending circumstances and the purposes for 
which the guaranty was made, £6 ;G« J«, page 930, In Taussig v« Held , 
146 111, 468, 497, the court said that construing such Instruments 
should be as favorable to the cret'.ltor "notwithstanding the guarantor 
Is, in a sense^ to be regarded as a surety, " and that the words are 
to be taken as strongly against the party giving them as the sense 

; ~ -Eiffel. iiv.-r^ • 

bii& bsRL L' arf^ to weir al 

,3 3gtB£[o 'xnrisfii Sob I.a;tlqriC£i sria ^© Il£ ict Y,^q o* 

a^lM STBS sd iiMa fisiii^aou .1 .tsc -rfsw d&Mys ^OOeSl! 

to e'i !>■.'. -xlfr.ct ■%nJ:tr:~''^.my . ': ; . ■if'ri x^Q o^ :^oifflr£oOoM 

^^,,1-!-- ■■.0 noxitasoni s. ^^-^S ^^^ aniiarted'efc •3' 

^: j'i «;paoqnuq sri; on.'^it^iESL'Diio *5iriifcnt>?Js aril lo tti'^11 9tii aX 

Q^tfisjBUiosnl xi&ya 8niin.Janoo 3Bcii bias J-jwoo aricf ,Ve^ ^80* .XXI 3*X 
ioiaBt*ag a«f^ ^alhsmiu&ilw^ofl** mo31')'?-io «di.t «;f f»Irr -lov al b& atf fiXuoxfB 


of them will admit. In GaBtle T.J^oireAl» 261 111, App, 132, 141, 
1* was said that "Courts will seek to discover and give effeot to the 
Intention of the parties, and contracts of guaranty will be construed 
in the same mairnits other contracts ( Vfhalen t« Stephens . 195 111* 121), 
and as favorably to the creditor as any other written contract, 
(Swisher v. Peering , 204 111. 203; Taussig v. Held. 145 111. 488. ) «• 
The decision in Commonwealth T. & S. Bk . v. Hart . 268 111, App. 322, 
is not in conflict with these cases* There it was held that a 
guarantor is a favorite of the law and has a right to stand upon the 
strict terms of his obligation "when such tprms are ascertained, " The 
oases first above cited state the mis for ascel^taining the terms of 
an obligation. 

The decisive part of the Instant letter Is: "You are hereby assured 
that all hospital bills will be paid out of the proceeds of whatever 
■ay be received as a result of the prosecution of her claim for 
injuries susta.ined on January 13, 1938." By these words the defendant 
undertook to see that plaintiff's hospital bill would be paid out of 
the proceeds of whatever may be received as a result of bar claim 
for damages. Language could not be clearer* Plaintiff does not contend 
that this was a guaremty by the defendant of the payment of the hospital 
bill in any event. Nor can it be said to be a general guaranty of pay- 
ment by the defendant. If nothing had b^^en realized out of the 
prosecution of her claim thei^ would have been no liability on defendant's 
part, but it is definitely an undertaking to pay plaintiff's bill out 
of whatever may be realized from her claim. 

There is no dispute as to the reasonableness of the charges for 
plaintiff's services, and defendant himself testified that he 
received $6500 from his settlement of Miss McCormick's claim. He then 
had in his possession funds more than suff lei nt to pay plaintiff's 
bill, and if, as he says, he turned over part of this to his wlient, 

^Z^I tSSI .qCjA «IXI IBS. tiJgWGS, >"y ,&X^8»Q fi4. „^lfit&JS IXfw flISMiJ lo 

tdSX ^ ''"^XtSXISi'L'li:. "'^ £2:.;.,- , ' ^^ ^^ gi^irsj^jiK '^- - ^d-^ ni 
'»(.?^t . i..' ^_ "' ll;^3i^g ;5C2 .112 l^Of! tSSijiiiiL < .5*^ll 

.v£[j)- fiogi/ fi«j!i#e 0-^ trfr ' ii .bna «rcX ©rfd" to ^tlnoy^lL s oi loj^n. ■ 

to tffiT:erf 9ri? ^rtinisJlEeaa^ ^o1: ®Iiri ^rli nt&tu be^ls ©yocTb *8tit ; 

»i!oi:*«alXcr : 

tmdt-Mlv J.o'BAi'-^kiit'S^ »xi* 1* *rj^o ht.m acJ Hi* aXIM I-itiqecid XXb SjasLi 

,,- .,:.. "-■ 1* .'■.+ . , -RTgisX© CCf ^Ojft feXWO® »SJ8WS*'A'^ ^a9®«ffiBfe lot 

.,-^; ,.<^n ^ .. ^...... .„ ... *..J- Iri^ss «?«f ■ ;^/ «ft'> 'Tr^^^ *tH9V© >j;isej «X XXid 

3 ' Jfjjsfeixsl'^^i^ flu .;;u^.i.i .!..-.-<..,. '^'ari bXl'ow sisil^ aJtMo ix?K t© fi©iJB©©sciq 

-t. ... -rfrf „ I v,^f^. ...,,., ^5;^.ii:i«J'raJ>ni/ fl« -^Xs-jriaitf)© ^ii *2 tud ^Pt&q 

^mlnlo Tsii aott A®siX»©i ©cf ■s;sffl love^Bihr to 

-^ff *-j.i..' t.^:;i:tit3-i3«H'"tX-'BfflM #(ttA5m»t$fi Miis t«»«>lviP8 a^ttiJnifiXq 
flfSiiif s?i, .(eXcT"- ''•''■'— -:t^ r-isiai t® tfeafflftilSJ-Jtsa «i5[ Beit 0098$ bvwlffoot 


yet be kept for himself $2700, nrnch mor than sufficient to pay 
the plaintiff. Common Justice and hie written ohllgatlon required 
hlB to pay plaintiff's hill out of the amount received in the 
settlement of his client's claim* 

Defendant says the court committed error in refusing to permit 
him to show an a leged custom and usage of attorneys in similar 
eases relating t« letters sent to hospitals. The record shows that^ no 
offer was made as to the natuz^ of such custom and usage if there 
was any such. The rale is that where an offer is made to produce 
eridenoe and objection le interposed, the offer must state specifically 
what it is proposed to show so that the court may rule upon its 
materiality and relevancy^ Hair Coj , v. Manly * 102 111, App. 570, 
an d Maxwoll y> Hahel . 92 111, App, 510, and other oases* 

Defendant argues that the Judgment is contrary to the manifest 
weight of the evidence and oitee many cases holding that under such 
eircumstanees a oourt of review will reverse. There is no doubt but 
that this is the rule. The evidence shows clearly that the letter 
was written to induce plaintiff to permit defendant's client to 
remain in its hospital and that following the letter she did so remain 
for many months thereafter. The evidence in this respect is 
uncontradicted and this is a good consideration f6r the defendant's 
undertaking. The Judgment is sufficiently proved by the preponderance 
of the evidence, and it is affirmed^ 

Matchett, P, J,, and O'Connor, J., concur* 

3d;t ill bf^rlt^o'i'x tfiJweiE^ fsidt to Jjro XXicf 8 * ttl^nlalq ^^ ©* «"t^ 

♦aiaX© &*in9lX9 aid "4o *xiM»i*^»e' 

Ci ^BriJ =.woflte jbto^ ,9£»riq«C(< o* d'cisa sie^^JsX e^f ijHWj&Xet 8^a9 

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xiov^ %&bsis tasii %uJt.blcd eesBo x^iAa s9;fXo £>ns sD£x9f>lTe f»£i^ tc ^jc%i»v 

tiPO ^duiib cjh b1 »*iedT »3e'i»T«^ XXiw if9jhr»-c ^o d"'Xuoo j» e '•OHJsf arajyorri© 

-i-'jt?*! ::ii;; :*;i::* %Ii»sX« ;?woa*B »0fisiJMv® srf'I i»»Ii/^ f^fli^ ai Biil# jAd* 

-^l 4o»qes^^ sXa'iJ^ fll »®a«Mv6 oaf ^is^tM-ate-si^ j^inoM tfia« tot 


I 317I.A. I5i 

ELIZAB?:Tk^-E:RI?:SE and WALTlffi E. ) 

frih;se, \>. ) 

(JEORGE R. PRlESHt-el: al,, "^^-4,. 

Appellee 8. )" 





This cause has twice been before the Supreme court. The 
flret opinion Is In 373 111, 216, where the decree of the Superior 
court which directed the trustee to distribute the corpus of the 
trust, which Included j?eal estate, was affirmed. The cause was 
redocketed and the partition feature of the litigation proceeded, 
ai narra:^ed In the opinion In 379 111. 269» Commissi on ere were 
appointed wbo found that the premises were Indivisible and their 
ralue was fixed at $9500; a decree was entered which directed the 
■aster to sell the real estate at public vendue to the highest 
bidder, provided the bid shall be equal to at least two- thirds of the 
v&luatlon fixed by tne commlsslon'^rs, as required by section 27 
of the Partition act, (oh, 106, 111. Rev* Stats.) 

Nancy Kelley was t.e holder of a mortgage Indebtedness of 
$3000, and default being made In payment, she started a 
foreclosure suit. That action was consolidated with the partition 
suit. The property was encumbered with taxes for the y ars 1934-1940 
Inclusive, or approximately ^2000» The property was sold to Nancy 
Kelley on her bid of $6400, which w s more than the required 
two-thirds of the appraised value and sufficient to account for the 
first mortgage encumbrance and taxes dtie on the property, A report 
of the pale was duly made by the master and a copy sent to rach 
of the parties In the proceedings and a decree was entered a roving 





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.ad's^e ^jjVsH ..--.::=. »dOI ^^o) ♦tfOA fiftia-itfiB^I wl* to 

& &mt^«^B siia ^^a^mx^ ni »6iM8 jnistf ;?Xi/jst95 fiita ,OOOCt 

Oi'eX-:^SGX bibcx ?ni* icl B®x«t £f*l* bf$»se€mu-Gii^ saw t^'^sqeiq ©d? .Jltre 

Xon.aK o^ Mos e^w x^i<?q(yi<s sri'i' *OOOSt icXeJjMBixciqqA •»» teyiauXofli 

&5«ii.'peT aii^ OBri^t «no« 8 w doXriw ^OO*©! to fcXcf lari no x--C-'^®^ 

doav oJ ;JjR9B x<?«^® * ^"^ i'^;fafiflt «xl? x<^ ©Jb^a ^Xuf-' s u 9X3 9£f;t lo 


the sale, reciting among other thlnga that the sale was fairly- 
made and empowering the master to pay all the outstanding 
delinquent taxes out of the proceeds of the sale. 

Subsequently the plaintiffs filed a petition asking that this 
decree he vacated on the ground that no notice was given plaintiffs 
of the presentation of the decree, that the property involved was 
sold for a considerable sum less than its true value, and that the 
decree p ovided that all of the delinquent taxes should be paid 
out of the purchase price. 

Separate answers were filed by Nancy Kelley and others. The 
trial court denied the prayer of the petition and plaintiffs 
appealed to the Supreme court alleging there was a freehold 
involved. That court held that plaintiffs' objection was directed 
solely to that part of the decree which orders the master to pay the 
taxes from the proceeds of the sale; that this issue d&es not 
involve a freehold and that it made no difference to the title shioh 
Nancy Kelley would acquire by a master's d^ed whether the issuable 
■atter relating to the Jraxes was granted or denied, for in either 
event she would iretain the title* The cause was transferred to thle 
court, (379 111. 269) 

The bri"ffl which were filed in the Supreme court are the only 
briefs in this court, and nowhere in the briefs of the appealing 
plaintiffs do we find any point made as to the provisions of the 
decree with reference to the delinquent taxes. Complaint is made of 
the action of the chancellor in refusing to vacate its decree 
confirming the master* s report when it w s informed that no master's 
report of the sale was on file* The opinion of the Supreme court 
above referred to disposes of this point adversely to the claim 
of plaintiffs. The only reference In the brief to that part of the 
decree ordering the master to pay the delinquent taxes is merely 
a recital of tae fact, with the statement that if the sale Is 

XltLs^i y3W sI^Q 9sii isisii a^fliffj i^ri^o s«o0i! j^al^t^-?^ t'^jX.ea adJl' 

S-3W ii^ev 1 ■ it;CtO'iq dii\ <«9iO!5f) aci;^j8;J'a®a6nt<| sriJ !t« 

3f: I ■ Ijav 9jsr "I i3i«a i*IdAT:9i)ia ffoo jb *io1 I>Io8 

:..yp.!lX3j:i mt^ "io IIjb jBfi> f^ealvo q ofii&^b 

^e^09T:i6 assf ^Gic^o^^(,do •s^li^nlAlq *arff Msri (t-xwco cfadT ^bsvlovni 

3rf;? -^o ^sas eiJ^J sisMo xlaiifv ssaeefe adit lo *iaq t&si$ o^ t^sloa 

a*©b 9u<^sX sin? :fad? joljse ©rf;^ 1;» aJbseoonq exfJ acrtt issxa* 

iisixiv eXcfi,: ry.»T:»l"li& on al>i8a! #X isuii ba& bl^B&it b svXovni 

aXCT-SMagjt saS- i^aJs^*' ^ * =>tltspo& bitsov x®-^-f»2 \©a«K 

airl.' ■relansn: . ' itLe tavre 

(fie: . , ;'i;.<oo 

■%£[■ ''j.jjoo aca-'rraucj ps^iJ kX b-^ls ■-:■•.,.- at:^iid SiflT 

SKiXasqos ^'di lo alslncT ad* ni sn^woit &/v« ^Jtuoo aiii* ai alelmi 

^di \Q BfioislvcMtq 9Jtitf oi las »J&j3« ;^isloq ^a* Jafilt Mr ofe am^niaXq 

lo 9bASi ai tfjii^XqaoO »«9Xfi* 3'noi;pc;lIfiX> «ii* o;J 9on«^9^©^ d^iw 9:^T[»aJ6 

0»'iof?t» QitJt s-^ : ifliairits'-j: Hi icXIsoni^^o arfd" %© noiJo« «d* 

's^9cre;Jffl on ^tailit fiieiEiolisi 8 w il neiiw **xeqsn a*tf»;f!8i8ifl ad* snianti^noa 

tn&cD sasTcqirS 9ii# 1» noiniqo »riT »«Ii"i no saw aXsa «il* "to tioqoi 

mia.X© f^di Z)i ti^BtsvJba #nioq n ^©aGqsi.6 ©* l>9Tt9^&^ »Totf« 

oif* to *iJ8q ^srl? o# "tsitcf «ri* nt •oa^'x^tsT: X-Cxto ©rCT ^al^l^fliaXq t« 

YX919JE ai sftxi* ^fl»«pfliXaJb «i«t X«q ocf istaAm sri* 8iiit-v5^t> qs^osIj 

%l %im 9di ii .rTr7isd;r«*s sii* ii*iw «*oisl 9 * to X«*ioet « 


permitted to stand the proorede will be sufficient only to pay the 

encumbrances and ooets of the suit* 

An answer to plaintiffs* petition was filed by Nancy Kelley 
in which she asserts that all the parties were present at the lale; 
that she paid $6400 cash, which was in accordance with the provision 
that the bid was to be at least two-thirds of the valuation; that 
all of the parties had full knowledge of the mortgage indebtedness 
of S3000 and the delinquent taxes; tlriat a copy of the master's report 
of sale was sent to all parties and no exceptions were filed to the 
report and no oounter-affidavits were filed denying the averments 
in Nancy Kelley's answer. 

The Supreme court found there were no facts supporting the claim 
that the property was sold for a sum less than its true value. It 
sold for a sum sufficient to pay the encumbrances, including the 
delinquent taxes, which must be paid to give the buyer a clear title* 
It was proper and reasonable for the chancellor to order them to be 
paid out of the sum received at the sale. 

The decree confirming the master's report of sale was entered 
October 22, 1940, and it wag not until January 6, 1941 that plaintiffs 
filed their petition to set aside the decree. 

In the answer of defendant George R, Friese to the petition to 
set aside the decree confirming the sale he says he is a beneficiary 
under the trust in which the property involved was held; that he 
ve lly believes that the setting aside of the sale would entail further 
delay and expense in this proceeding, to the damage of the 
beneficiaries under the trust, including the plaintiffs. He asked that 
plaintiffs' petition be dismis ed. 

The trial court so ordered and, for the reasons indicated the 
order is affirwed, 


Matchett, P, J^, and O'Connor, J,, concur. 


Bift %&a €>t Xiao ttie otttuB ecf IXlw ?»&r ootq edS ktmiB o.t be^itaiQq 

-. id aria- .t&dtf 

oG'trtfi^^Jdiji^r;* '--^^.sji^ticr ■•-X7?cn^ lit;': : ^tsq ari^ to II« 

itiov _ ' ■ ■. ; ' • nz OOOC^ to 

.iP^Bfis b'^cqIIsX xoni&yi at 
jBifilo s -- ,. - ■''i'^'r'.t l!ri.uot "'^yoo ee-^qwc arfl 

•^ii^ -anihi-.Tr.^t ,8 ©ons^ctai/oiK? srf^ ^sq oS ineloitlUB Bsn A lot liXoe 
,.,,.„^,. .?!if ^.i,:t 9vtg o^ hl&q stf *ei/K doiiiw f,BSXAi ia9ijpatL9b 

. ■ , .... -..^._.^. ....... . {'^JS texfoJoC 

<.^.:,1©95 0113- SblBk. .: .,, V. ... r?c:.rf:+ FmXll 

^1': i.A. 


"~~~---.-^ Appellees, 

BRIDG-ET H. SULLIVM, Admlril^ijc^^rlx 
de bonis non of :, state oP<fAl^'^S"%*^, 
MOORS9 Deoeaeedy 



O-eorge L, W» Moore and Clara Moore, his wife, filed their 
claim December let, 1938, in the Probate court of Cook county, for 
ISfSOS, against the es'oate of James W» Moore, deoeased* There was 
a hearing and the claim was disallowr^d; an appeal w; s taken to the 
Circuit court of Cook ooxmty, where there was a tial and the claim 
allowed for $2,640, An appeal was taken to this court where the 
Judgment of the Circuit court was rerersed and the caus^ remanded, 
In re estate of Moore . 310 111. App» 365» The cage was rettled in 
part; the evidence which was introduced on the first hearing in the 
Circuit court was offered in evidence on the second t ial and some 
additional evidence w&s also Introduced, The trial Judge entered 
Judgment for $2,640 in claimant fe« favor and the administratrix 

The facts are stated in our former opinion and wi 1 not be 
repeated here, /e there said that where a claim for board and 
nursing was not made as in the instant case, until several years 
after the wlaim should have been paid, there wa^^ a presumption that 
the claim had been paid. And we said: "Apparently this was not In 
the mind of the parties upon the trial and there is evidence 
available which was not presented," We reversed the Judgment and 
remahded th« cause so that the parties might introduce any available 


wi^' •!> 



. uOD :iH'r 10 aClHI^iO aRT OaHSiYIJiKf JJ0H«90»0 '■>'M'EeBl.*i»Bl 
•si9d* fielil »9tiw sin , arisXD bits. ,1P . 

lidi oS iTSsStjBd" s ..w Xastqa'i n» 5*osroIlA«iD a-^w laijslo •ri* fins s^liA-^rf a 
atiiilo eA^ 5na laX d' a ai3w ^^^fit 9«xs>£fw (^^mroo iooO ^o tivoo ituottO 

^&9i>fi^2si 3U&0 sdd' Mil b^gisy©^: siM» inisoo iluotlQ 9cii lo JnsasAirJ, 
■jBM^e^ 8«w n'?!ao adT .39'.; , ,XII OXs c ^'aiocM to Q^^^^-ii yi nl 

©BIOS ba& l&l ^ baooBs ari:t no sonafiivo ni baiet^o oaw iiiuoo iluoifO 

»cf Son llm bOB noifliqo x'iflnol tsio al ft'^i-s^a is 8*o«l s/iT 

jbiis Mfiocf lOt ffii--5lo .3 ensdB <fBiltf l>l£a e^;J/ ^^neii fiaJjueqsi 

s-s-i - '? Ii;tfUi ,93so tfiBifint ©ri* al ea 9bam ioa e^^w afliisiun 

Jisil;f nciitqasoa-nq a "'avr ©tariff ^Mbq npsd ovsrl bluorfa ini«Xi» Mf:^ iBftz 

tit^Qti SAW Bid? -?I;tn5¥XBqqA" iblse 9w BjbA .Msq nnatf bMti bIaIp sdi 

sonsDlvs 3i 9i&dt imsi IbSl^:^ 9dS tioqu B^tii&q arf;f to Mia ©ri^ 

baa ^cvisrstbul ed^ .fe-^Ri-vs^ 9V< " «.6ei^flS3?nq ion asm nolilw elcfAXlAVA 

sldAllATA XO& ©oirfeo^Jni ;friala a^ld-iAq adJ ?,ail$ &e e«i/«o Mi* bBUMmvn 

S. 7 

evidence as to whether the olaia had been pald» For this purpose 

claimants called their two children, George La W, Moore, Jr,, and 
Mrs. Clara Moore Wilson, who ave testimony to tiie effect that in 
the summer ©f 1932 they heard their father, the claimant, speak 
to James W* Moore, requesting payment hut that the latter said his 
money was tied up or that he was buying bonds so he was not able 
to pay at the time. Two other witnesses, called by claimants, 
testified ae to the i?easonable value of the services rendered by 
claimants to Janes W* Moore« No evidence on t^ Is point was 
offered by defendant. 

Defendant offered evidence tending to show that the deceased 
had ample means at all times to pay his bills as ue went along; 
that he owed no debts but apparently always paid his bills 
promptly; while on the other hand, clal.ant Gteorge L« W, Moore, 
who owned an equity In an eight-apartment building, was about 
to lose the building through foreclosure proceedings begun In 1933 
and In lieu of the appointment of a receiver, was authorized t« 
oolleot the rents; that he did hot pay $46 a month for an extra 
apartment aft r James W, Moore went to live with claimants, as the 
evidence of claimants tended to show. 

Counsel for defendant contends that the finding and Judgment 
are against the manlf'^st weight of the evidence and the evidence Is 
dlsou'^^eed, authorities cited, analyzed and applied. We have considered 
the evidence and the argument made and while we feel there Is 
considerable merit in defendant's contention, yet we are of opinion 
that we would not be warranted in disturbing the finding and 
Judgment on the ground that they are against the manifest weight 
of the evidence, especially when we consider the fact that the 
caso has been tried before two Judges of the Circuit court and each 
found In favor of the claimants, and also in view of our former 

Ana ^, t -tooM .W *J ©^'se^-fi tissiMido otrcf "xieiS* 6sIXj5o a*flJ3fliJiBlo 

Xtf .^'^Tsbn^^t Hr.DlY-;'?" ■^n'l' 1o suIbv olcfsijo^^'^'t art* od' r« Jbeltl^ss^ 

V ott8Jblv9 oil ^f'looU «1 sesfit oit •d^na&lAlo 

i>sas©o®5 ari^- .tand- ^fods c.;j- T,;Ti.&rTS^ icn^l'vlv.* .ca^cntlc t i-i&br: '^t&Q . ■ '•■ '. ^ 99mtS > . -^Xqaji 6a^ 

,;5t:cc. , . ?-S'tosHj t,-r3:.Xj8Xo ,&a»ri °i'-.xi#o oiij no sllctw \xl;tamoiQ 
rf'iio; ^^ . aomttAqm-ici^i^ tiA al •%t±isp:'> ob b^snn:: edit 

; V 3'o?>XIoo 

;J'xl3;iow *8e1tln->ii: u;..; .)..,iiAi>^v, ■ ■■■' <,-'"* Palis' fifiB'©*!^^ eritf ao iamai^^l 

~ i» •^■c7"-"'' 

,,, .oixa gni.j.i. 

ai sen'-' 

-, A-j-o '--rfrt ?Srt 1 . 

•<Tr f, t a ,- 



Complaint is also made that the court erred in refusing 
to consider the history of the deceased's bank account for a 
period of time prior to the time he went to live with claimants and 
that the court also erred in holding as 1 material the renting of 
a safety deposit box by the deceaseds We think there was no 
error in either of these rulings.. The court admitted in evidence 
the record of the deceased's bank account from the time he went 
to live with claimants and we think the status of his account, 
pria>r to that time, in view of all the evidence In the case, was 
of no probative value. We are also of opinion that the renting 
of the safety deposit box by the deceased would throw no light 
on the matter In controversy* 

For the r asons stated in this and our fonner opinion, the 
Judgment of the Circuit court of Cook county is affirmed* 


Matohett, P. J., and LicSurely, J,, concur. 


r,tot»lsi niii neibtBtioo ot 
cttq ami* to boltQq 

^sgitliwi 99a£i3- tc T'^'dile flJt •sorrrr© 

t^iarooos aiil to aw^A*a aaJ afcliiJ sw btm Btajdmi.£lD diJtm evil ot 

SAY t ai eoiis&iv I* t© wolv rsi tsaid" j^^rfJ oJ t^iiq 

gjalifa®^ ariJ? J.^arfi' ««&Ibv ©vi^'anfotq on lo 

9d;J ,iig±jHiqc i'=>'BnQt iuq baa ^Itii al liQS&Sa 3ncae-->T: Bjtit lo"? 

t.*lUOt.A ■ 





THOMAS D« NASH, Coimty Treasurer and 
Ex Officio Cotinty Collector of Cook 
County, Illinois, and Ex Officio Re- 
ceiver of Rents, 



PORATIjN, a Corporati&a^ 


a Corporation, '"" 



) * 




Norember 15, 1941, the Metropolitan Life Insurance Oo«- 
pany, a corporation, sought leave to file its rerified petition and 
to intervene in a tax receiver-hip suit brought by the County 
Treasurer and Ex Officio County Collector, June 27, 1934, Objection 
was made by the plaintiff who had been appointed receiver of a 66 - 
apartment cooperative building, in Chicago, belonging to defendant. 
Park Castles Apartment Building Corporation, Objection was also 
made by the building corporation* Leave to intervene was denied 
and the insurance company appeals. 

The recoil discloses that July 10^ 1933, the County Collector 
filed his complaint in the County court of Cook county praying that 
he be appointed receiver of the apartment building to collect the 
rents and apply them to unpaid taxes levied against the property, A 
few days thereaft^^r, he was appointed and proce ded to discharge his 
duties. The proceeding was brought under the Skarda act paseed by 
the Legislature^ in 1933, (Laws of 1933, p. 873*) A number of 
similar receiverships were brought, one of which was taken to the 
Supr'^me court where it wi held that County courts did toot have 


( bar ■ c , :iT 

( - ; , _ .00 

( , . ISO 

JVi''- ■ t i-JCJJ.4,.;^UA,. 




- 5a is lo isvleosT: fea^nioqq* ffsetf fc^ orfw VllSnl&lq 9£ii x<i 9b»m Bam 

.aljseqqB ^naqaco sonBiusiti fwlif fciia 

sriS' S-oeXIco Cut ^jril&Xiucf ^a^adtMqA «xi^ to isviftost l)»;tjaIoqq« scf ari 
A •x^i^qciq ^ri^t tafiissJ* fjeivaX 8»x«* btBqnts oi nodt tXqqa bn* B^n9i 
BtA ^-gis^d^oBlb ct 5»6' 90(«q bnz A»;fnioqqj8 9*w aul tif»^laeT«»ri;r ttx»b w»l 

to •xednu/fl a ( .SV8 .q tSSQX to 8W*J) ,fi5GX flX '^•XJj;r«X8l3eJ ad* 

sdS- OCT n'^afBa- ©ftve lioldw to «no ,W5swoad 9i«w iqlrlBi'^vXeoen rtiellflls 

9VjMt *oit Ml) utiKoo xtnuoO tndi AXari i^w *Jt a^eriw ^owos ?»a9rtqti8 

Jurisdiction to appoint receivers because they were not 
specifically mentioned in the act, but that Jurisdiction i»as in 
courts of chancery, iaePonougfa v* Gage . 357 111, 466, The opinion 
in that case was filed June 20, 1934, and 7 days thereaft r, a 
number of redeirership cases which were pending in the Coimty court, 
including the one in question, were transferred to the Circuit court 
of Cook county* The County Collector brought a suit in that court 
where he was appointed tax receiver of the 66-apartinent building, 
and as such receiver^ oouunenced the discharge of his duties. That 
suit is the one in which the insurance eomp&nj sought to intervene* 

After the decision by our Gupreme court in the McPonough oasei 
the Legislature in 1935 amended the Skarda act, or pased a new act 
in lieu thereof, which authorized County courts to appoint tax 
receivers* (Laws of 1936, p» 1166« } Following the new law, the 
County Collector, December 3, 1935, filed hie petition in the County 
court praying that he be appointed receiver of the apartment build- 
ing and the County court entered an order which, among other things, 
found that the partiee had entered into a stipulation that the County 
court have Jurisdiction of the entire subject matter from 1933, and 
that the Circuit court prooepdings be transferred to the County court. 
The insurance company was not a party to this stipulation. The County 
court refused to appoint the County Collector in that proceeding 
but entered an order whichj on appeal to this court, was reversed 
in part, affirmed in part, and remanded with directions. Toman v. 
Park Castles Apt* Bldr. Corp, 303 111. App« 205. A further appeal 
was taken to the Supreme court where the Judgment of the Appellate 
flourt was reversed, and the oi?der of the County court reversed, in 
part, and remanded, with directions, 375 111, 293. September 27, 
1934, the County Collector, as receiver, filed his final account in 
the County court, which showed he had a balance of ^11,807*36 in his 

til aflw «> l^foifiK. fTc;?. I'itii tucl t^ .. sii ni j>«i!tci;taea ^IlAoiliosqa 

i-:. '.r-v.' oxfT •36;:; , ^S5 «^ig£ *v ^yi^oncg^ ^■^'i->©i?ario 1c aiiuoe 

iiuoo SMS ..- >.^^. .-. Jd^i/oTd lOvfpQXlAO ^;fm/&.0 9*n? ^■i.itasao aicoO ^o 
^«C[T ^gsltfi^B aid lo »3iartoal . .-. £)€iofl9fiiffle© (it?vi??o«t riotfg a« l>fiB 

XitwcXj mi til a^l^it^q sJLci J&elit ^dsei tS iTstfaeoeG ^''^eJoeXIoO x*«*foO 

iS^nlxl* nadiJo giiuu*^ tiAylrfw isis^to nis .^s^e^as- J-imx* Tja-aircO «xi^ JS>xui B>^ 

has tSSei mG*s"l 'xsd^Jj^ Jost<^^a ^*it^ti9 «jEf3^ to £ioifplJ!)aiii^t evi>d ^luco 

b&Bi^Y9i^ a«i» ^;f 11/00 alii* ott Xisaqqis no ^^Idm ■xsl^'xc «*» bat^tn^ iu<S 
ifieqqji tstfid^wl i\ «§02 «q^ *XIi 306 ,^g^ toD ..•^■bXl^ *?gA aaX^a^D jtt**? 

nX itiuciiofi l^tilt aixi iiiaXXl ^*j©vJi««SfT: s« ^'XctfoaXXo^ i^-flBoO add t>5eX 
^Id ai 8«,V08^XX^ to aofiftXetf » buid ed bevxidn. ti^Iriv t*i«oo ximi<;0 9rf:r 


hands, being taxes ojlleoted by him. 

Counsel for the insurance company in their brief say: 
"It does not appear <* * ** that any disposition was ever made of the 
$11,807»36 in the hands of said tax receiver, " And further, that 
the Collector, as receiver, "also has $2,199,02 of rents collected 
as tax receiver of the Circuit Court for which he hag not 
properly accounted. He should also account for rents improperly 
used to pay penalties which accrued on eo much of the taxes as he 
could have paid out of rents In his hands available therefor* The 
Circuit Court has Jurisdiction emd inherent power to require its 
tax receiver $o accovint for all rente collected, notwithstanding 
the order purporting to discharge him from furth«?r duties as tax 
receiver appointed by the Circuit Court," 

TbP objections to the insurance company's application to 
intervene, made by the plaintiff tax receiver and the building cor- 
poration are: (1) that the suit was dismissed Aoril 13, 1935, and 
that leave to file the petition to intervene was not made until 
November 15, 1941, more than 6 years thereafter, and therefore the 
court had no Jurisdiction to allow the motion* (2) T^at May 12, 
1936> the Coiinty Collector filed an Interpleader suit in the Circuit 
court of Cook county, in which he alleged that a number of tax 
receivership suits had been brought, inol :<ding the one In question, 
and the.t the claims of the Insurance company should ^ ttoere 
adjudicated. In that suit It was further alleged in the insurance 
company's petition, that rents had been collected from several 
properties and disbursements made; that the Supreme court, June 20, 
1934, held that the County courts had no general equity powers to 
appoint receivers; that their appointment was void; that out of the 
rents collected |109, 617,60 was on deposit in the First National Bank 
of flhlcago; "that claims were made thereon by various persons; that 

«ifliri x<i bBio9lly.o asxjs? gislec ^afcasri 

b9to9lIco «*«ei 1:0 SO^esi^at ^Md orIm^ ^noviso®^ as iioJfoelXoD ^* 

srl'- *ic^©i©xj:^ Bld&ll&ra uijo&ti 9M nl a*fi3M tc too bisq svsri BIi/o* 
'^ttlbn&tstitlviGn tfesifo^IIeo s^HftT IIb *eo1: ^f*wod«J5 ©* i5svi9«sn x»t 

fea« ^8681 ,SX lit. .'A JE>3eetffl»l£> aBW *X£f8 eif* S-Aild^ (I) :6*c£ ncX*«ioq 

Xi^fiy slijia: ^on ajs« snsvistfisi od' ncXd-lifsq ^di eXll cd^ evseX ^.aiiif 

»iitJ' «Htol»«€ttlJ 6«5 iif :*'iB©*ted;t si«e-^ d n^;t stoat jl^ex ^ax iscfarsroM 

tSX IB® *e£fT .nol^os! srfd' woXXs ojf jjciJolfealiirt oxi fc^irf tii/oo 

^luoit'O ^d'3 fti ?iiJ8 is£»a9Xq'X9*wI flfi 5»X11 loS-ftsXXoO •^traLrcO srf? %©5€X 

?-:c'.-* 1' T dffijT: " if^t f>«>ssIXjB ©ri xfeXrlw al ^xtnuoo ^ocO Ic ^Txroo 

•Oflstwsnl sriiT fri fes^sIXs iftilifii;^ s«ty lii ^ Itra Jsri* itl ,l)SJ*©16tft** 

XaT«v«ff arcit fisd-oelXoo rtsftff bM atfnei (tjBxft ,ffoii'l*sq s'xrtfiqwoo 

l^'l. «0S fimifX. t^wofi efflnqire 5>ff:f Jjarf* {sjbeat atweaoerttfrfalfe *rt« g«i#t«qc^q 

ot aiswcq x*-^*^P9 XAiejtf&jl on JSari aJfiwc© t^m/oO eri*- :tadt JbXsrf ^*cex 

«ri;t lo '^uo it-eriJf ;MoT aaw 3"«9«3'nioqq» nisrid' ^Ad;^ ;ji*tovl»8>eT ^nloqqjs 

IflsS X*ixoi*sK ^Btt"^ 9ri^ ri ;rXaoqe6 rro baw Oa^VIS^eOX* fcetooXXco a*rr»t 

tads janoatoq afjfcX*rAY t^ no9*iai!f* '^baa *rf«w bibXbXo Jfirit* tcssoXifd lo 


the respective claimants should be required to interplead and the 
several claims of the several claimants should be adjudicated^ •• that 
October 2, 1936, the First National Bank filed its counterclaim 
In the inteiT>leader suit in which It alleged that there was on 
deposit in the bank to the credit of the tax receiver, S226,454,44; 
that "various sums were paid out," leaving still on deposit 
♦l09,392*9Gj that "various persons ware making claims thereto," 
§b41 the prayer of the counterclaim was that the several claimants 
be required t* interplead and that the bank "be permitted to deposit 
said fund in court and be relieved from all liability for said funds, " 

In the instant case the record discloses that on April 13, 
1936, two orders were entered by the Circuit court in the tax re- 
ceivership suit, in which the insurance company seeks to intervene. 
The orders are as follows: "On motion of Plaintiff:- This matter 
coming on to be heardj and the court being fully advised in the 

"It is ordered, adjudged and decreed that the petition heretofore 
filed in the above entitled cause be and the same Is hez*eby 
dismissed, without costs»" And the othpr order is* "On motion of 
plaintiff. This matter coming on to be heasft, and the Court being 
fully advised in the promises* 

"It is ordered, adjudged and decreed th&t the order heretofore 
entered on the 3rd day of July A#D, 1935 appointing plaintiff as 
Receiver herein is hereby vacated*" [Obviously the year of the 
order is incorrect. The year mentioned should be 1934, 3 

October 14, 1935, another order was entered in that case 
which recited the matter came on to be heard on motion of the tax 
receiver to approve his final report and accoxant; that notice had 
been served on all parties; that the court examined the report and 

'£ii to . 

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account; that the charges made In the report were fair and reason- 
able; that the receipts and disbursement a were true and correct 
and that no objections had been filed. And it was ordered that the 
account be approved and confirmed, and it was further ordered that 
the receiver be directed and autxiorized "to deduct from the moneys 
now on hand the sum of fl, 505,40 due to defray the costs and expenses 
incurred and services rendered herein and that the balance of 
#3,674,64 be paid over to Park Castles Apartment Building Corp, 

"It Is further ordered that the order heretofore entered on the 
3rd day of July A,D. 1934, appointing Joseph L.&ill as Tax Receiver 
be and the same is hereby vacated and set aside and said Joseph L« 
&111 is hereby relieved and discharged of his duties as Tax Receiver." 

The record shows three further orders entered by the court 
May 27, 1935, June 24, 1935 and September 30, 1935 - and December 
3, 1935, another order was entered which recited that the tax 
receiver applied for the approval of his report and account for the 
period from February 1, 1935, to April 14, 1935, and it appearing 
that objections had been filed, it was ordered that the defendant, 
the building corporation, be permitted to exsimine all of the 
receive/ *s accounts and that he be given access to all of the records, 

Whether the Circuit court had inherent power to dispose 
of the moneys remaining in the ireceiver's hands, in view of all 
the facts alleged in the petition sought to be filed by the 
insurance company, although the suit had been dismissed many years 
prior, need not be decided. But in view of the many slailZLar 
suits which had been filed in. the County and Circuit courts and 
the claims made to the funds on deposit in the First National 
Bank by diverse persons, we arp( of opinion that the matters could 
not properly be disposed of without having all the parties before 

-nosAPt ft/IB *tl»'i 6*iflw Jrrogi^ er-itf at 9bussi B&'gt^Ao 9rf;t tssiS itaucooM 

BsansqxQ Jbftis stBos> ^? t^nl9& o^ f!«ft Ol^^dOBtlt to fiatfa edtt feftsd no wen 

eJ iiq»ao£r Mas 6nJB ebiaa *93 &«« frs^fa^^T -^dfrE^^ii ai efiii5S acf^ &na ©cf 
Jiifo® -^^ 'iti^ J5ei&^««» ??'3:<?Mo tarfj^nwl B9^sif swoiie Mo«s^ ariT 

lis 1o iS&Iv fix ,8f>K.«*j(l 3**s»vi«>«>*^ s.«t.? al ^rtlnl^Bt©-? 8X«noai ©rC^ to 
siB'-Y '^xu-^ isAoimei-o m->^ bsji i'i/ja 9xf;J rf^woiid-XB tX^^qsroo ttoix&nusal 

XenoUftl tfaTif flits' fti *ls©q»B no nbtojt scti o? e6«iB aarljaXo «ri^ 
i>Xuoo sn^trtsffi 9;Ef.1 oiulrro Ic ^ta ow c«>xo«'t«q «»i«vll> x^ 3tn«fi 


the court. Viewing the record In the light most favorable to 
the Insurance company, we are of opinion that the right to 
Intervene was not absolute but within the discretion of the 

f^t order of the Circuit court of Cook cotmty appealed 
from is affirmed, 


Hatohetty P. J«, and Mc Surely, J«, concur. 

,T«sflco t<L ftXX?»*t4fa«M Mr> ^*G ^-x 4^3'*irfo^«it 

A- 1 



O J_ i i- »^^* jeu -^ 

GEN. NO. 9838 

y AGENDA NO. 18 

\ OCTOBER TERJl, A.2U 1942 













This action was Instituted by appellee In a Justice 
of the Peace Court, to recover property damage sustained 
to his automobile in a collision between it, and that of 
appellant. The case was appealed from the Justice Court 
to the County Court, where a jury returned a verdict for 
appellee-plaintiff, in the sum of $250. The defendant 
has appealed from this judgment, and argues four points 
for reversal. The points so argued are questions of fact, 
except the last, which is directed toward the instructions 
of appellee, being two in nximber. 

From a review of the evidence, we are not disposed to 
disturb the finding of the jury. The first instruction on 
behalf of appellee, had to do with the measure of damages. 

. h. ^uma HiS^OTOC 

90l:t-?. ... . ^.. 'jcf Jbed^//S.t^'ari.t aeV: rroi.-toB sir":" 

■ ne6w;J©d iiojtbllloo js istl dlMomod^jj-B alxf o;f 
►i rterr'iJifctei Tj*ix;t, b eieri^^ ^^ijjoO t^nubO ©rfd" orf 

.;j^oal lo exiolc^aajap eis fisjjjjiB oa atfnloq ©ilT .Ijaaisvsnt lol 

. '?:r?cfntyn .al owi snlocf t»©IXoqqa lo 

It told the jury that where the property can he repaired, 
the measure of damages was the cost of such repair; and 
if the automobile was damaged beyond repair, that then the 
measure of damage would be the fair, cash, market value of 
the car at the time of such collision, less the fair, cash, 
market value of the salvage thereof. This is the import of 
the instruction, and we believe states the proper rule. 
Although the second instruction on behalf of plaintiff was 
not drawn as correctly and completely as it should have 
been, yet we do not believe it misled the jury. A record 
need not be free from all error. Beery v. Breed, 311 111. 
App. 469, 480, When it appears that a litigant has not been 
prejudiced by the defects complained of, or when they are 
of such a character that they do not materially affect his 
rights, they may not justify a reversal. In view of the 
evidence in the case, we are not of the opinion that either 
of plaintiff's instructions misled the jury in its considera- 
tion of the evidence. 

The judgment is therefore affirmed. 

Judgment affirmed. 


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y ■ 

Gen. No. 9C77 

317I.A, 153 



Agenda Ko. 1, 




IN THE .-■ 

appellate court of illinois 
second' district 


...etTOBER TERM, A. D. 1942. 


\ Appellees, 




Consolidated with 


Ben A. Smith, 


Elmer Knowles, 










WOLFE, — J. 

This cause is here on leave to appeal granted for review, 
of an order of the Circuit Court of Will County granting appellees 
a new trial on the Court's own .-notion. 

The record discloses that on July 1, 1940, about two o'clock 
A,",, appellant, Elmer Knowles, was driving an automobile in a souther- 
ly direction on Federal Route G6 South of the City of Joliet, about 

VVoP ,ot: .aeO 



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I,3iic! wen ja 

-(oolo L- d-arftt aeeolosib Liooei en'T 

itrods ,c!8iIoT. lo ^ilO ©ricf lo r:ifSoB 93 e:f.'-0'i IxjiQJbo'i no c\olioGilb xl 


five miles south of its intersection with the Troy road, now Route 
No. 52. Ke was accompanied by Richard Haley. Appellee, Ben li. Smith, 
accompanied by his wife, and by Henry 0. Grassle, Guy \S. Spiecher, 
and their respective wives, v.-as driving his car north, and tlrieir 
cars collided. Ben A. Smith instituted suit against appellant and 
on the same day the other five occupants of his car did likewise. 
Appellant answered and filed a counterclaim in each suit. The cases 
were consolidated. Appellees claimed appellant's car suddenly sming 
across the center line of the pavement into their path. Appellant 
made a like claim as to the car in which appellees were riding. At 
the close of all the testimony the court directed a verdict on the 
couTiterclaim in favor of all the appellees except Ben A. Smith. 

In addition to the general forms of verdict submitted to 
the jury, two special interrogatories were submitted. One, whether 
appellant was gallty of wilful and wanton misconduct; the other, 
whether he was operating his car with ordimry care and caution. The 
jury answered the first interrogatory in the negative. The second 
interrogatory was not answered "Yes" or "No." Those words were crossed 
out by the jury, and immediately below they wrote: "We the jury find 
the defendant and plaintiffs both guilty of negligence in operating 
their cars. We feel that neither the plaintiffs or the defendant 
should recover any damages in this case." None of the forms of 
verdict were signed by the jury. 

i,»^ ♦v.' 

........ "^"'-^ 

5 ?»n 


In setting aside the verdict and grimting a nev>' trial, the 
court stated the verdict was contrary to the nanifest weight of 
the evidence, and also stated the verdict v/as contrary to the in- 
structions of the court. One of tiie well recognized grounds for 
setting aside a verdict and granting a nev; trial is that the 
verdict is against the manifest wei^t of the evidence. (Valant 
V. Metropolitan Life Insurance Co., 302 111. A??. 196; Darthelman v. 
Braun, 278 id. 384; Baumeister v. Bowers, 271 id. 332.) The action 
of the trial court in passing on a question of fact arising hy a 
-aotion for a new trial will not lightly be disturbed. (Adamsen v. 
Magnelia, 280 111. App. 418; Barthelman v. Braun, supra.) 

The appellees excepting one who was asleep on the bacL: seat, 
testified the Smith car was being driven on tiie right side of the 
paveiuent, fron eighteen inches to two feet east of ^e center line 
at a speed of about thirty-five miles per hour, and that appellant's 
car s^addenly tiarned into their path, when only about 100 to 150 feet 
away. Appellant testified the Smith car was over the center line 
half a foot or a foot and swerved into his path when about fifty feet 
away, but he admitted he told appellees' counsel two weeks before the 
trial that he did not know If the Smith car was over the center 
line. 7\~s.e testimony shows that after the accident the Smith car 
was headed northeast with the right hand wheels on the shoulder 
east of the pavement, and appellant's car was east of the center 

•Tol a£>. 


el Y^lll c^ 


iftifneo erfi lo ;faBe a?:. 


line headed southeast. Abo^it two thirds of the left hand side of the 
front end of each car v.- as mashed. 

The testinony shows that a short time prior to tho accident, 
appellant, with Haley in the car, drove to a filling station snxL 
tavern at Troy, and asked Raymond Ctunnlngs vihere ho could get a drink. 
The tavern there v;as closed, and Cuinnings accompanied tlioia to Norton's, 
another tavern about five niles southwest of the highway intersection, 
v;here they procured beer. Returning;;, Cunniii.^s got out of the car at 
the intersection. Cunmiinss testified tiiat durin:^ thct trip appellant 
tvifice drove across the black line, and that he, ( CuBunlngs, ) on each 
occasion grabbed the steering wheel, and told appellant he should be 
r^ore careful; and tiiat appellant was apparently asleep or intoxicated, 
Knowles denied that Cummlngs got into the car and went to Norton's, 
but Gumming s was corroborated by Haley on this point and also as to 
their procuring beer at Norton's. Haley also testified he did not 
remember which side of the center line appellant v;as and that he Vi^aa 
nearly asleep and "kind of dozy, " 

V/here the evidence is in conflict the verdict will not be 
set aside unless it is clearly and manifestly against tlie weight of 
the evidence. (V/rlght v. Stinger, 269 111. App. 224.) In this 
case the court was justified in sotting the verdict aside. 

The order setting aside the verdict and granting a new trial 
is affirmed. 

Order Affirmed, 

..1 ; , 

aod 9£il 

:rr .- r >^ 







X • irl « X 



Gen. IIo. 9340. 

A.c;enda No. 19. 




1 ' 
OC^^J^ TERM, A. dI^ ]^2. 


Plaintiff and Appellee, 


• .. / 

THE CITY OF ELGIN, a wiutiicipal Corporation, et al., 

5>efendant and appellant. 

Appeal from 
Circuit Court, 
Kane County. 

WOLFE, — J. 

On January 23, 1941, Guy P. Nadon filed his complaint in 
the Circuit Court of Kane County, charging the defendant, the City of 
Elgin, a luunicipal Corporation as being the ovmer of a certain side- 
walk in said city at and near the intersection of Spring and HiPage 
Street. He alleges it is the duty of said city to keep the sidewalks 
in a reasonably safe condition so that the parties using said sidewalks 
would not be injured thereon, but that the defendant negligently and 
carelessly permitted snow and ice to for:n in hillocks and ridges on a 
certain sidewalk, and that the defendant negligently and carelessly 

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failed to remove such snov/ and Ice from th.e sidewalk, or to do any 
other act in regard thereto, so as to render said sidewalk at and 
near the place, safe for the user thereof, and that the plaintiff, 
while in the exercise of due care and caution for his own safety, 
slipped and fell on the said ice and ohstruction and was injured 

The complaint also alleged that the plaintiff served 
upon Perry D. wells. City Attorney, and H. M. Bri^tman, the City 
Clerk of the City of Elgin, a notice wherein he iat ended to sue the 
city for the damages that he had sustained. A copy of this notice 
v;as attached to the plaintiff's complaint. 

The defendant filed its answer in wliich it admitted the 
ownership, care of the streets etc., but it denied that it was negli- 
gent in the care of the streets, or that snow and Ice had accumulated 
on the street, as alleged in plaintiff's complaint, or that the 
plaintiff was Injured and damaged as claimed. The case was tried 
before the Court and jury. At the conclusion of the plaintiff's 
evidence and also at the conclusion of all of the evidence, the 
defendant made a motion for a directed verdict, but each of said 
motions were denied. The jury rendered a verdict in favor of the 
plaintiff for ^500,00. The defendant entered a motion for a judgment 
notwithstanding the verdict, which was overruled. The defendant then 
made a motion for a new trial, v.hich motion was likewise overruled. 
A judgment was then entered on the verdict in favor of the plaintiff 

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for ^jSOO.OO, and to reverse this judgment, the City of Elgin has prose- 
cuted this appeal. 

Point two of appellant's brief is that no proof of notice 
to the City of Elgin of the alleged accident was proven in the trial 
for the appellee. It is argued by the appellant that failure of 
proof of such notice is fatal to the appellee's case, and they cite 
several authorities that sustained that contention. It is alleged in 
plaintiff's complaint that he did give such notice, and a copy of the 
same is attached to the complaint. Subsection tv;o of Section 164, 
Chapter 110 of Smith Kurd's Illinois Annotated Statute provides as 
follows: "Every allegation, except allegation of damages not explicitly 
denied shall be deemed to be admitted, iinless the party shall state in 
his pleading that he has no knowledge thereof sufficient to form a 
belief." The defendant did not deny this allegation of plaintiff's 
complaint, therefore they have admitted it, and proof of the same was 

The other points raised by the appellant are questions 
of fact. They argue seriously that the plaintiff did not prove that 
he was in the exercise of ordinary care and caution for his own safety, 
nor did he prove notice to the city of the dangerous condition of the 
sidewalk. The instructions are not abstracted, but an examination of 
the record discloses that the jury were fully advised by the defendant's 
instructions on all of these points, and the jury after hearing the evi- 
dence and the instructions of the Court, decided all of these points 
adversely to the appellant. After reading the evidence as abstracted, 
it is our conclusion that the verdict of the jury is not against the 
manifest weight of the evidence, therefore we would not be justified in 
reversing the case. The judgment of the trial court is hereby affirmed,. 

Judgment affirmed. 


J •iiSU •yuUi 

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Ei-^. '-^O 

Ho. "^^H-H- 


AP?::]LL-;-TE GOU.^ 

October T9rrn,A.I).i942 


Jacob 0. Brownin 

Plaint if f-Ap$'s^lee , 

Arden 0. Brovmlng.-'^nd Opal 
B. Atksisson, 

Dpfendants-Appellanta. ) 

Dady, J^. 

ii JL i XmlnL 

This is an appeal from a decree requiring the defendants to 
pay annixally to the plaintiff during his lifetime the net incoBo frotc 
80 acres of land in -ontgonery County. 

The decree further provided that defendants should pay the 
plaintiff $625. as the net income already received by them from - . 
said real ©state diiring the years 1939 and 1940. 

Jacob 0. Brooming, the plaintiff, and Laura li. Browning, who 
died about raroh 8, 1938> were husband and wife. The tx7o defendants, 
Arden 0. Browning and Opal B. Atkeisson, are their children. Fannio 
E« Orr was the mother of Laura a. Browning, and she was the ov/ner of 
the real estate involved in this litigation at the time of her death 
in 1936. 

The proofs were heard by the chancellor. 

Ho point is made that there was any variance betii.-'S>en the 
allegations of the complaint as amended and the proofs, or that the 
relief granted by the decree was not properly based on the allegations 
and prayer of the ooi-plaint. Therefore '7e see no occasion for 
setting up any of the allegations of ouch complaint for v/e believe 
the issues before us w-ill be siifficiently presented by atating the 
material parts of the decree. 


V-V.^V- .0,H ,;.,3^ 



The court, in its decree, found that on July 15, 19!56, Fannie E. 
Orr died leaving a v;ill duly adnitted to probate, by which she directed 
that V7ithin tliree years after her death, George 0. Browning, executor 
therein named, sell at public or private^, sale and convert into cash 
the real estate in question, and execute the necessary deed of 
conveyance: that by such illl she bequeathed one half of the proceeds 
of the sale of such real estate to Laura R. Browning; that she 
bequeathed the reinaining one half of such proceeds to George 0. 
Browning in trust, the trustee to pay the income therefrom to Leiruel 
A. Orr during his natural life, and at his death, if ho left no issue 
then surviving, to pay such regaining one-half to the defendants; 
that Lemuel A. Orr died about September S5, 1936, Xirithout leaving any 
descendant, and Laura R, Brovming died about Karch 8, 19??8; that 
George G. Browning duly qiialified as executor; that in accordance 
with said vfill said executor on Noverjber 9, 1937, at the solicitation 
of defendants, convoyed said real estate at private sale to the 
defendants by deed, the deed reciting a consideration of "'5,000; 
that said lands v7ero v/orth Tnore than ^5,000; that as a part of the 
consideration for said deed, an agreenent was made by and betv/een 
the defendants and Browning, as executor and individually, Laura R. 
Browning and the plaintiff, which said agreement was within about 
two rreeks after the date of said deed, reduced to writing and executed 
and delivered to Laui»a R. Browning and the plaintiff by the defendants 
and their respective spouses, in and by vrhioh said iTritten agreer;ent 
defendants, and their respective spouses, agreed that the rents fron 
said lands should be collected by Arden 0. Browning for and during 
the natural life of Laura il« Browning and the plaintiff or the 
sTorvivor off then, and that, after paying the taxes and all other 
expenses, all rents arising therefrom ifsvs to be paid by said 


•sc^+.cjfor.o .■^niJ-'rrT ..a._gj. ^^.^ rjc+tj- art-cv aoi*l* rrlff-t 'tt iBr':* 


'TO vrrn o . 3 .+n-.''iP>rTP*'" 

..-i .t 

Arden 0. Browning to the plaintiff and Laura R. Browning durins their 
n^-tural Hr#® and then to the survivor of them; that a further consider- 
ation for the executing of said aereeEient v/aa the changing of the 
beneficiary in a policy of insurance on the life of Laura H, Browning, 
deceased, from the plaintiff to the defendants; that a copy of said 
agreeraent, so signed by the. defendants and their respective spouses, 
was in the possession of plaintiff, but that about a year after the 
execution thereof the 3ar:e became lost, mislaid, dJ^troyed or stolen 
and that notice to produce a copy thereof v;a3 duly rriven to the 
defendants, but that the sane was not produced by them or either of 
then, and that after the doath of Laura R. Brovming and the execution 
of such agreement the defendants received •5:4,000 insurance as 
beneficiaries vmder such policy^"s»n<U?««t5^ from which they paid all 
nortgags indebtedness on said land and paid over the balance to 
the plaintiff; and that the defendants paid to plaintiff the rents 
and profits from said ree.l estate for the first year after the 
delivery of said deed, but thereafter refused to pay any part thereof. 

By its decree the court adjudged and decreed the defendants to 
be the owners of said real estate; tliat during the lifetime of 
the plaintiff it vras their duty, vinder said agreement, after the 
payment of taxes and expenses of the operation of tho farm, to pay 
to the plaintiff all that regained therefrom; that the defendants 
pay to the plaintiff $662.50 as the net amount lue for the years 
1939 and 1940; that defendants, during the lifetirae of plaintiff, 
acooxint and pay to plaintiff all rents, issues and profits from 
said real estate subsequent to the year 1940, first deducting the 
taxes and expenses of harvesting the produce therefrom and caain- 
tainine said farm. 


: Of) 

&u«^Jb«> i.At^ 

I"he defend&nts first contend that th© court erred in 
denying their motion to strike the complaint as aar.end«d. The 
only ground argued in this court on such contention Is thet it 
Is evident frois such complaint that evidence of the s^lleged 
written agreeaent referred to in said decree ^-as not admissible 
to vary, alter or cut down the terms cf the deed in question 
nnd thpt even if proven the admission of £uch evidence would 
violate the parol evidence rule ae there was no sllegation that 
such written agreeeent was under se&l, rig ^sg the deed. For the 
reasont hereinafter stated in 'llsposlng of the case on th« merits, 
it is our opinion th^^t the court did not err in denying such 

Defendants contend the evidence Is too indefinite and 
uncertain to Justify the decree. We do not consider it useful 
or necess.^ry to give any detailed statement of the evidence. 
Having in mind the rule of law that strong and conclusive evidence 
is required to establish lost writings Involving title to real 
estate, and that such evidence caust be clear and convincing in 
every respect (Shipley v, Shipley, £74 111. 508), we consider 
it sufficient to say 's-e h.^ve carefully read the evidence and 
in our opinion the tri:! court, evidently believing the evidence 
favorable to plaintiff, was clearly justified In jr.sking the 
findings of fact above set forth. 

The princlpul and decisive question is whether or not 
evidence of such agreement was competent, 

TSe believe that the defendants have misapprehended 
the legal effect of the agreement found to have been executed 
by thea. In Browning v. Brov?nlng, 879 III, 29, this same pro- 
ceeding was before our Supreise Court on transfer froa this court. 
The Supreme Court ordered the cause tr?insf erred back to this 
ccurt on the grounr: that & freehold was not Involved, In so 

■ ^' ■ ^ . ■ ■"■;■; •■ :' ■ ..-b'^-x^'-. --i^-- ■ 

-oi<? ^ffiiE^a aJiftJ- t8i2 . ' "" ■"" .'jalcff'OfS .v ^ioirwoiil "" a. x^ 

doing the Supreme Court saidt "It will be observeo that the 
decree appealed froai does not create a life estate In uhe lands 
in appellee. It .T^erely directed appellants to saake annual 
paysaents to appellee, the amount of such payments to be the 
net rents. The payment of the ssiie did not in any way affect 
appellants' title in the land. Appellee does not question the 
d«cree in that regard either by cross-appeal cr cross-error. 
Appellants claim appellee was not entitled to any relief and 
argue questions pertaining to the evidence, the applicability of 
the Statute of Frauds, and the failure to Join the executor at 
a party to the suit. It is obvious that whatever disposition 
may be made of the errors urged for reversal it can in no -^ay 
change appellants* title in the land. Whether the decree was 
correct in not giving appellee a life estate is not before the 
court. * ♦ ♦ The pleadings involved a freehold, but the errors 
relied upon ♦ * * do not, and under such condition of the record 
a freehold is not involved so as to give this court Jurisdiction 
on a direct appeal." 

It therefore follows there is no serit to the conten- 
tion of the defendants that evidence of sue-, written agreement 
was inadmissible as varying, altering or cutting down the terms 
of such deed. 

Likewise there is no Merit to the contention that the 
admission of such evidence violated any parol evidence rule. 
The parol evidence rule does not preclude the reception of parol 
evidence that does not tend to vary or contradict the written 
Instrument already received in evidence, ( McDonald v. Danahy ^ 
1S8 111. 133.) Evidence of a collateral ^greeiaent made contem- 
poraneous with or subsequent to the principal agreement may ba 
shown if it is consistent r/lth the provisions of the principal 


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. Jl-T V- "il !■■ 

a'i£« U-:? 

i ^:;ji «'..;->. 

:d £i©J;iq»o^* 

i ■»..».. w.. 

il ■:>.■; 

agreement. ( Fuchs k Lang Co. v. Kittredge k Co ., &4fc. Ill, 88.) 
Parol evidence c&n alv.nys be introduced to show the true con- 
sideration for a deed provided that such showing does not change 
or defeat the legal operation and effect of such deed. ( Lloyd v. 
Sandusky . 203 111, 821j Metzger v. Emael , £69 111. Sfe.) 

The only other complaint of defendants is that George 
C. Bro^-nini*, as executor, was not rt^ade a party defendmt. Ho 
relief was asked against hia i^nd he was not affected by the 
decree. Therefore there was no occasion for making him a party. 

The decree of the circuit court is affirmed. 


> -lO i*' ^^i ^a'xiilJi ,v .oO aoaJ A ttJoa'l ) . ^ nsrs^igc 

X»cia?a .V T(»aa;tgH {X3c . Yfec^xu'-a 






S ^y 2 ^ 

« O s 

General No. 9344 

October Tern, A. D. 1942- 
Agenda No. 

Appeal froin the 

Oirouit Court ot 

Montgomery Ooy/hty, 

JACOB 0. bro7;niitg, 




Defendanta-Appellants. ) 

Per Curiam: 
' Appellants have filed a petition for reiyearing. 

The only ground urged in the petition is that ovr 
opinion erroneously states that "No point is rr.aie that ^ ^ ^ the 
proofs or that the relief granted by the dooree -.v.-is not properly 
based on the allegations and prayer of the oonplaint." Appellants 
contend that the "ooinplaint ends with a prayer 'that a decree 
of this cou^t be returned establishing a life estate in and to 
said premises in the plaintiff*." As a n:atter of fact the 
complaint ends 'vith a prayer that "plaintiff have such other 
and further relief « « » as equity Eay require and to the court 
shall seeB cieet." A general prayer for relief is sufficient to 
support any decree warranted by the facts alleged in the bill 
and established by the evidence. Geiger v. Uerle , 360 111. 497. 
The petition for rehearing is denied. 



/.'•;- re -I'l JO ' " " "'01 edi i^dS no elooicr 

o;r^>IIcqrA ".acix^ic c; src; '-C Ttt <; ■ :' ' fi no bemd 

ojld^ icA^-^ 10 • £ e/i ~ ■' ■ " GtU at eeB/.rieiq tlB^ 

' '^ ,txTeJEoi:!tteG ai let Let no'i «ieY»" 'larte 

IM erii al f)9f9XXa a;to«l edit xo ^e.-rr^'i^f w st^-^i c.: vri.r .^loqqi/e 

"'I OttS ifil^^M .V ii6g lea .9®Piei>Jtve &"" orfallcf^Jeo fcnjs 


General number 9335, 

Agwids nuaber 16, 








Plaintiff -Appellaj*; 

OCtQgSR TERM, A.D. 1942 ,^"^' 








This is an appeal from a judgment in favor of Cornelius 
Fricke, defendant, in an action brought for personal injuries 
by the plaintiff, Frank P. Hohimer. The case was tried by a 
jury and resulted in a verdict In favor of the plaintiff in 
the sum of $2,076,65. Upon motion of defendant the Trial Court 
entered a Judgment In favor of the defendant non obstante 

The complaint consisted of three original counts, and 
one additional count filed after the verdict, all of ^ich 
alleged wanton and wilful conduct. Defendant in his answer 
denied the same setting m^ an affirmative defense that plaintiff 
WES guilty of the seme conduct as the driver of the cer because 
he was riding in the front seat and had the same opportunity to 
see and discover danger aa defendant had. 

There does not seem to be a gre-^t deal of conflict In 
the evidence. The plaintiff was injured at a street intersection 
with the main line of the G. & I. M, Railway in Petersburg, 
Illinois, while riding with the defendant in defendant's 



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nc.2*os^ie;tni Jae-i-Js « 5a fts-i/tal j&hw i:ttWn±»lq orff .sons bf re arW 

voo*^ ifc has sia 



automobile at about one o'clock P.M. on Sunday, January 7, 

1940, srid RUtoiBobile being struck by a lOGoaaotive, Plaintiff's 

daughter Kathryn rode in tiie back seat of the car, her father 
rode in tb.e front seat on the right-hand side, and the defendant 
drove the csr, — which was ? four-door Sedan. The street in 
question was known as Taylor Street, running in an easterly and 
westerly direction, and the railroad, which ran north and south, 
intersected it at a right angle. The railroad was laid on Fourth 
Street. The main line of the railroad was located on the east 
side of Fourth Street f>nd the switch track was immediately west 
of it. Next to the switch track was that part of Fourth Street 
used for general travel which was about 15 or 20 feet wide. West 
of that was a spur track that crossed Taylor Street and ran along 
the east side of the Armour Cheese building, said building being on 
the southwest corner of the intersection. This ^uJd^A'iig' 'was a 
two-story building which sftt adjacent to the west line of Fourth 
Street and feirly close to the south line of Taylor Street. 
Where Taylor Street crossed the spur track there wss a plaiik 
crossing sufficiently wide for double traffic, but where it 
crossed the siding and the main line, the plank wae only for 
single traffic. The cheese factory shut off the vie?; of any 
automobile going east on Taylor Street from trains approaching 
said intersection from the south. The plaintiff requested the 
defendant to sl><cken his speed about two blocks from the inter- 
section, and it appears from the evidence on both pldes that 
the defendant, ss he approached the intersection, was going at 
a moderate speed. The ground wa" covered with snow which had 
fallen the night before. There had been one track made in the 
snow along Taylor Street in the block leading up to the railroad 
crossing. At the school house, two blocks west of the railroad 
crossing, defendant had applied his brakes to avoid running over 
a child on a sled. It appeared that his brakes worked and he did 
not skid at that point. As they came to the railroad crossing 

J? 'lll*nlaX<3: ,9vi;?o£HoocI j» id Mint? 

Ja»5¥ .s-lJiw *.9^J8^ .oa ,js8t..4X- I'JI^wfe ft«w 4oXrf* leY^--, ^ 
no 3fli©o ^iJLsilwd ^.f>8 ,3f!l£>XXi;cf 9S«9ilO iwos u 

;?Pi-rfrf; aa.bia riffod no eoficiiiiv* #£U #0^1 i s-iaeqctft ^■''^ '^"^ ^aoiitwes 

^B ^filor- , :ci?Q3eri:©jni «rf? Mdoeoiqqjs e n«4i)«t>l«£ art? 

6firi 40a/1« soiie ciJiw l>»"rsv 5nwo«X3 *^^ .ii<^»qE sJeigboK a 

9rfi' rti; aftsiH ioBT? »ito need i>.iii aiaflT .sio'i: ■~''* nellAl 


AiJS j^ldBOIt^ 

plaintiff testified thet he watched for a train but did. not 
see or hear anything; thet before reaching the cheese factory 
8pur track, however, he ssw the train approaching on the main 
track from tiie south snd werned the defendant by stating, 'there 
comes a train', ?nd at the same time his daughter Ksthryn did 
the same. It appears from the evidence that eighty feet west 
of the raaln line a train coming from tr^e south can be seen 
seventy five feet south of the crossing. The train was traveling 
at about forty miles an hour ^nd the automobile from fifteen to 
tv?enty miles an hour. The autoaobile continued to go east on 
Taylor Street, and stopped upon the crossing over the main track 
in front of the ay^^proaching train where it was struck. Just 
before the collision, the defendant removed his right arm from 
the steering wheel and threw it around the plaintlfi. It appears 
that there wps the usual cross-arsa sign at this crossing, and both 
plaintiff and defendant were familiar with the crossing. It 
further appears from the evirience that before the car was struck 
by the locomotive, the left front wheel went off the plank and 
on to the main line track. Defendant testified that he applied 
his brakes as he cune up to the niain line, but the car skidded 
ahead. Witness Bell who stood «ibnut one hundred feet away, 
corroborated the defendant in his testimonj'- on the application 
of the brakes snd said that if defendant had continued the same 
speed without applying the brakes he would have cleared the 
crossing ahead of the train. Both the plaintiff and defendant 
had been lntim«te friends for sometime prior to this, and on 
the day in question the defendant was helping the plaintiff 
in 8 plumbing Job at plaintiff's house and they had gone to 
get a vise to be used in the vrork. 

Under the circumstances as shown by the evidence for 
the defendant, to drive up to a railroad crossing covered with 
ice and snow, and obstructed as this wap; to pass the spur trac^ 


:^ll«in»?n:;f saw tileni Biif .^aisBOTtc 

Anil ifnAIq 9«f;f llo *n«w Idi>dw ita&tli tleS 


after he s&w the train comlr^; to pass the treveled portion of 
Fourth Street and not turn to the right or left on Fourth Street 
but continue on T&ylor 3treet and pess over the side-trsck, and 
then on to the main line and stall his car ^'ith the left wheel 
off the crossing plank, warranted the trisl court in submitting 
the case to the Jury on the question of negligence of defendant. 
The question of whether or not plaintiff was equally reckless, 
in sitting in the front seat, is a serious question. Under the 
law, a passenger riding in an automobile is reouired to exercise 
due diligence for his own safety, and to watch out for danger 
8n(i warn the driver. If the plaintiff failed to exercise 
reasonable diligence in keeping with the dangerous situation 
that surroundedwjaim as the cer approached this crossing, he 
is barred from recovery. 

Where there is any evidence which taken with its reason- 
able inference in its aspect, most tpvorable to the plaintiff, 
tends to show the u<5e of due c=^re, the question of due care is 
one for the jury. Whether there is any such evidence is a 
question of law. In determining such question the Court can 
examine the record only to determine whether there is any 
evidence so tending to support due care on the part of the 
plaintiff. Dee v. City of Peru, 343 111. 36. 

There is some evidence of due care on the part of the 
plaintiff namely, his watching for a train as they approached 
the crossing, his discovery of the train as soon as his line 
of vision was cleared from the corner of the cheese factory, 
and his giving immediate Wflrning, also his request to slacken 
speed two blocks back, We find that this evidence warranted 
the trial court in denying a motion for a directed verdict at 
the clo?e of plaintiff's case, als'^ at the close of all the 
evidence, and made it a proper case to be submitted to a Jury 
to be passed on as a question of fact. 

Controverted questions of fact are to be submitted to 

bfi-^ ,-?f^«T;t-«M8 9t : f'w.sflF no 9uattaoo Sud 

■ '■ • , -yl sno 

tidy to^$m»q'-9di fi' ©T^io Si/--) Ic »o««Mt» swao* si eTerir 

R9iL^al9 ct tafitio^t sirf osXft ^•'iSil8t<m ^tzlMmd milvl'g aid baa 

b^jnfjr.ts^' ©onsfc.Cv9 sifht JMar i:>nrj . BAoo£<i ovs L»9q» 

jb ioiSn^f b^io»Tti> ft "XOl «ioitfo«a .*» ;:^nix«®^' "-^^ ?*tt^cc -a'.r 

srfj IlA lo »ooIo sri* ** 9 Li, -*'i1i:fr: Lo «rf^ 




the jury for Its consideration and determination. McFarlane 
V. Chicago City Railvjay Company, 288 111. 476. In capelle v. 
Chicago & Northwestern Kailv;ay Company, 280 111. App. 471, 
it was stated, "The trial court has no more povjer to weigh 
and determine controverted questions of fact under the present 
Practice Act, than it had prior thereto. In furtherance of 
the general principle that it is preferable that cases involving 
questions of fact should be disposed of on their merits by a 
jury, rather than upon formal motions, a trial court after 
denying a motion for an instructed verdict for defendant, at 
the close of -plaintiff's evidence and again at the close of 
all the evidence, should not render nugatory the verdict of 
a jury returned on disputed questions of fact, by rendering 
a judgment non obstante veredicto in favor of such defendant; 
but if the court is dissatisfied vdth the verdict under the 
evidence, he should grant a ne-.v trial instead." 

As in the Capelle case the trial court upon 
correctly passing on the peremptory motions, and having a 
jury try the questions of fact, should not have reversed 
itself after a verdict in favor of the plaintiff by entering 
a judgment non obstante veredicto, but if it was dissatisfied 
with the verdict because it v/as not supported by the evidence 
should have v\raited until 'a motion for a new trial was made 
and then allowed a new trial. 

The judgment of the trial court is reversed and 
this cause remanded/ v/ith directions to overrule defendant's 
motion for judgment for the defendant notwithstanding the 

Reversed and Remanded 
^/mrth directions. 


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il;^i9v; ocf isv/ocr sto-t nn ofi5f{ d-ruoo iBxicf ^-.K"' . r-.s.tscJ-a sbw 'cfl 

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gnxisfinsi "^cf jCtoel Ic anoxd'asup bsSuq-aiD no jDsriaj.Tsi Y^i^t ^ 

jctnBf)n9l9£) liona lo toybI nx od-oxib9'i9v 9d-fL6cJ-8cfo non cfxcscQbxrG f- 

lebaij d-ox£)i9v 9rld- rid-xw figxlexd-BSBXf) ax d"iiJoo arid' Ix d-ircf 

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noqy d"ii;oo iBi'id- sd^ saeo sIIsgBO srid- nx ^A 

.3 snxvBxl 6nB ,anox^Oin xio&qmsieq add' no gnxssBq xlioeiioo 

58ST9V9T: 9VB£l dT ^3 ^d-ofil 1o SflOXCtSSUp 9ild- Y.10 x^iu'i 

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9on9Dxv9 9ild' xd beStoqquB d-on 3Bw d^x aa06O9cf d-ox&i9v ed& rld-xw 

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bobasmaPi baa bssievsSl 
.anoxd-osixb dSiv. 

OEK. NO. 9823 


cX^ I. 

317I.A. 873 




\^ OCTOBER TERM, A^. 1S^2 

B. L. TOCI-aiAI^", 






ET AL., / 

( J. E. BAIRSTOY?,/ 



) COURT OF LAKE cou^:TY:, 



APPgLLAl>JT) . ) 


Tliis casQ was previously before this court, and is 
reported in 305 111. App. 661. Appellee Hallford was the 
legal holder of a Master's Certificate of Sale of a farm. 
Issued lAirsuant to a mortgage foreclosure. Appellee 
Tocknian was a Jxidgment creditor of the mortgagors. Short- 
ly before the fifteen month period had expired, appellant 
Bairstow became the holder of $.16,000, of judgment notes 
against the mortgagors. He put these notes in judgment, 
secured $11,999.20, from Mr. Amsler,a banker, which was 
the amount necessary for the redemption from the foreclosure 

5 ^ i^ 

p s^ ' jii-ut^ xj^.m.j sssssTT^Bi ' a rrr 


■^■:rf:-)'> rtrrfi,; 

"! -TTV; i VK-Tn- - . -q-' -ri-T«?AF'TA3 


■■ fa»* >» 


m il wfli )|<i(p V iw»iiitiy> 

! _ ■ ■' '■l y^.; ' ^^ ! * ' ! '?**' ! ' ;? "**^ 

^c-T.n ;? "io »Xa2 to ©;taoJtlIJ . IsasI 

ctn«XX«crQ'9 ,JE>elJ:qxe fijad l)0li8q jEt^no^fi neac^lT.i arf^ eiolsd tjI 

tayn sioldv ,i©iUusicf , . , 

©luaoXeeiol ©d;t motl aotiqtaabr 'j-jflasieoon ;Jft«om3 ©rfi 

sale, and thereupon paid this amount to the Sheriff for the 
purpose of making redemption, and requested e sale of the 
preialsea upon execution issued pursuant to iiis judgment. 
The appellees in this case then filed their suit to restrain 
the Sheriff from making sale ptirsuant to execution issued 
upon Bairs tow's judgment. An appeal was prosecuted in that 
case. The decree was reversed and remanded. A full state- 
ment of the facts ;vill appear in the former opinion. 

Upon an entry of decree by the lower court, pui'suant to 
the remandirxg order in trie former case, Bairs tow filed a 
petition for the allowance of money damages occasioned by 
the wrongful suing out of the injunctioia by appellees herein. 
The damages claimed consist of seven items, totaling #5,656.17. 
The circ^^it coxrrt denied appellant's claim in all respects, 
and it is from such order, appellant prosecutes this appeal. 

The damage claimed by appellant is itemized on page 36 
of his brief, as follows: 

(a) Interest on (;13,200 at &% for 

2^ years |;i, 980.00 

(b) Interest on the judgment for 

v;^ 15, 100 during 2|- years injunc- 
tion was in force 1,927.50 

(c) Insurance premiums during tiae 

2i year period. 172.50 

(d) Taxes which accrued or were paid 

during the 2^ year period 708.82 

(e) The sum Bairs tow agreed to pay 
Amsler as additional commission 
to keep the option in force dur- 
ing the pendency of injunction 300.00 


niai;Jee'i ocl ^lua -jr^crf.:* .belli ner':? ?.> '^o c.t'f.'* aX aeeXIeqqis ©dT 

Vl.dSd^oc,;. SiilXfici'cxt ,a«a©dl ne'i. .aJtanoo bemlS'-io eagAoalb axU 

oS s.. i>sJtjG©ci ax ii'^fl i.X®qq«» tj*^ S39ml&Lo ©j^ainj%6 b4j 

raw olio 'i ar* ^'j.&l'rn aid lo 

3'i©vJjfTl (a) 

• V.' -K', . COY is 

TOT ;•, ■ ' ■' , : 


• « «« • « 

00 • 005 aoX i t> iiii'ial. lo . ^Si3j9i>ii04 3 M . 3^iX 


(f ) Aiaount hairs tow paid or became 

obligatod to pay Lliiiard E. Hulse, 
Attorney for Araaler, in connec- 
tion with the loan ,,•.. 300,00 

(g) Sheriff's costs for advertising 

sales • * • • «... 49 ,20 

(h) Court Reporter's Fees..., 80,50 

(1) Printing Briefs 137.65 

Witii respect to item (a), which is for interest claimed 
upon the redemption money paid, we are of the opinion that 
section 21 of the Judgment and Execution Act (Ch. 77, sec, 
21, 111. St.), takes care of such claim. 

With respect to itom (b), wMch is for Interest clained 
upon appellant's judgment, v/e are of the opinion that the 
same bears interest, pursuant to sec. 7, of the above act. 

Items (c) and (d), consisting of insurance premiums 
and taxes, are items of expense wMch appellant would have 
paid had he obtained the property at the time of his attempted 

Item (f) is waived, pureviant to statement of appellant. 

Itan (g), consisting of Sheriff's costs for advertising 
execution sale, is covared by the Statu to. 

Items (h) and (i) are not proper allowances to be 
included in this case. They are costs incident to the 
former appeal. 

Item (e), in the sum of ^^SOO, is claimed by appellant 
as damages based upon his dealings with the banker, Mr, 
Amaler, According to appellant's testimony, the redemption 

.iaJ:»Xo /iaiiB lo- ©IB© e©2ls5' ^(.d: ,15 

be;Jqio&^tf« alil ^o fmli ©oi d'is '^tfisqoiq axis' iJsjiiBJtc!© sff bai M«q 


money was advanced him by Mr. Amaler upon a six month con- 
tract, that when appellees instituted the injxmction siiit, 
the proceedings were delayed and he was compelled to agree 
to pay ^300, in order to secure a continuance of his redemp- 
tion contract -until the final conclvision of the litigation. 
There is no evidence to dispute tills claim, and it would 
appear to be a direct damage to appellant occasioned by 
the action of appellees. We are of the opinion such claim 
should have been allowed. 

The order and decree of the circuit court is therefore 
reversed and remanded with directions to grant item (e) in 
the sum of ^300, to appellant, and against appellees, as 
damages s\istained# In all other respects the decree is 

Affirmed in part, reversed in part, 
and remanded with directions. 


»«t3ft 6^ bdl.Ceqnoo bjmt art •■!>«« Ixft'^Al^fi #«xar mgixiiJdeoo'sq ®iij 
-I-'"- ■■■■. -^^ '.; ■ ' ">.;■ "^'^ ^-'Tt* •^'i'; , «<&©iI«v|qB lo aOjt70£ ewli 






3.11' I.A. 374' 

Gen. ITo. 9834. 

Agenda Ko, 16, 






©QTOBER TERli, A/ D. 1942. 


P lain tiff -Appe llee>vj 



/ Defendant -Appellant. ) 

Appeal frosil 
Circuit Court, 
Peoria County, 

WOLFE, — '' J. 

On September 12, 1940, Christine Hurfr filed her complaint 
in the Circuiit Court of Peoria County, alleging that her husband had 
deserted her and that she was then living separate and apart from him 
without fault on her part. She asked for a decree of separate mainten- 
ance. She alleged that the separation took place on July 2, 1939, She 
charged the defendant, her husband, with being quarrelscne and abusive 
toward her, and that he endeavored to compel her to obtain a divorce 
from him. The defendant filed his answer admitting that they did not 
live together and had not done so since July 4, 1939, He denied all 

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said aioal ^t-iaqB J)cb eiBtiaqea scilvll a9di a«w srfe ct«xld' bjcx-sj isrf beii9B»b 

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the charges made against him, and claimed that the separation was by 
consent, and that he had attempted to effect a reconciliation v/ith 
his wife, tut that she had refused. 

The case was referred to the Master in Chancery to take 
the proof. The plaintiff and the defendant were the only v/itnesses. 
She testified to many acts of incompatibility and of quarrels, and 
introduced documentary evidence tending to support her case. The 
defendant then testified on his own behalf. The Master found that 
the plaintiff's proof sustained her allegations in the complaint, 
and recommended that a decree of separate maintenance be granted 
the plaintiff. To this report, the defendant filed objections, which 
were overruled by the Master. Exceptions to the Master's Report were 
filed in the Circuit Court, The Court overruled the exceptions, and 
entered a decree in accordance v;ith the lilaster's Report, and it is 
from this decree that the appeal is prosecuted. 

The questions of law involved in this case are not in 
dispute. It is purely a question of fact, and most of Yfaich are 
not in dispute. It is agreed by both parties that they liad been 
drifting apart, for several years, and the parting of the ways became 
inevitable. The parties had three daughters, which in good faith, had 
tried to bring about a reconciliation between their parents, but had 
failed, and the parents finally parted. 

The trial court has found that the wife was living separate 
and apart without fault on her part, and that the defendant, the husband. 

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need" bad x^di iad:i eel^iaq diod xd bseigjB el il .eissqnlb al ion 

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had not In 2:ood faith, attempted a reconciliation. V>'e have read the 
evidence of the husband and wife, and It is our conclusion that the 
Court properly found that the plaintiff was living separate and 
apart from the defendant v^lthout fault on her part, therefore the 
decree of the trial court should be affirmed. 


&A:i iadi nolei/lorroo Tiro el il bixts ^sliw bns JbDscfaxttf @xtj lo eonsMv© 





MAI^GAiyCr^-^-aiLPH J. SALERJ^, 
indlvidually^--M4R4l*f1I J. SALERNO, 
doing business aplffeaiO D. SALERNO 
SONS. ."-" 





ON A FJJid OF RALPH J, SALSRIv^O, ; -^^^. 

Indj^dually and RALPH J. SALERNO, 
dj^ng business as ROSARIO D. SALERKO 


This appeal seeks to reverse a Judgment for $1,094-. 09 ren- 
dered in favor of plaintiff, Joseph Parnetti, and against defend- 
ants, Prancesca Kangano, Dominic Mangano, and Ralph J. Salerno, 
Individually, and Ralph J. Salerno, doing business as Rosari© D. 
Salerno Sons, on a promissory note in the principal sum of $1,000. 
The Judgment included the principal of said note plus $94.09 
accrued interest. The case was tried by the court without a Jury. 
The makers of the note, Prancesca Mangano and Dominic Mangano, 
have not Joined in this appeal. 

Plaintiff's statement of claim alleged his acquisition of 
the note, his demand on the makers to pay same, their refusal to 
pay and due notice of protest. The note was attached to and made 
a part of plaintiff's statement of claim. 

Apparently because of the fact that Ralph J. Salerno 
indorsed the note both individually and as Ralph J. Salerno, doing 
business as Rosario D. Salerno Sons, he was named as a defendant 
under both designations. Hereinafter for convenience he will be 
sometimes referred to merely as Salerno, The affidavit of merits 
and defense of Ralph J. Salerno individually and Ralph J. Salerno, 
doing business as Rosario D. Salerno Sons admits the execution of 
the note, the placing of Salerno's signatures on the reverse side 




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o.t IsButen il^di ^eiase -^eq o;t eisjieai exfcl' ao firuameb eixl ^«^on edi 
9bsssi pn& oi £i&rio3.t:t b esw ©ion sriT. .iaeioiq lo ool&on &ssh ba& x^ 

,«lalolo itiBmoiaia e'llIinlBlq to iiisq a 

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thereof and his delivery of said note to one Robert J, Spahr, It 
then alleges that Salerno had no knowledge that the note was indorsed 
and delivered to plaintiff In due course of business, that "said 
note by its terms became due on demand," that demand for payment 
was made on the makers, Francesca Mangano and Dominic Mangano, on 
July 22, 1940 and "payment refused by them," and that "said note 
was duly protested for nonpayment and notice thereof sent to said 

The affidavit of merits and defense also alleged that "an 
examination of the note in question discloses that on the reverse 
side thereof, there appears a printed form wherein and whereby the 
endorser of the said note unconditionally guarantees payment of the 
said note together with other provisions, but alleges that the said 
printed matter on the reverse side of the said note bears a large 
Ink cross, thereby eliminating the guarantee provision contained In 
said printing and that in addition to the said large ink cross 
through the said printed material, there is written across the said 
printed material the words 'without recourse* 5 wherefore this de- 
fendant alleges that the specific printed provision of guarantee 
by the endorser having been eliminated by the ink cross in question, 
there is left only the legal effect of the signatures of this de- 
fendant on the reverse side of the same note; that ordinarily the 
legal effect of such signatures v/ould be to provide, by Implication 
of law, the endorsement of the note on the reverse side; that l»y 
reason of this defendant having written the said words 'without 
recourse* in the place where the same appears on the reverse side 
of the said note, the legal effect of the signing of the said note 
by this defendant is that the signing of this defendant's name did 
not then becoaw an endorsement of the said note but that such signing 
merely operated to transfer title and to giiarantee the validity of 
the signature of the makers of the said note." The affidavit of 
merits and defense admitted that Salerno failed and refused to pay 

Jbiss" d'i^ri^ ,8S5»iile|fcf lo ^eiiroo sob xsi TUitnisiq o* fesisviXsfc bne 

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9*on f)±s8 sxl^ lo s«i:nsl2 sdJ lo ;t09lls X^^geX scfit ^siton bt&e, edS lo 

6i5 aaiiin e'd-iusfyaelsb eliij lo aninjiXa ©xi a&baeteb axril yd 

aninaia dox/e imH ijtd ^ion bX&e. qA^ Jo Snem&aiobrw no sesooed aedS ion 

lo -^cMbiXsv ^::Ai secfnaa^sua oc^ jbrt.: i^^lBnBXJ' oJ- ^ed^aasqo xXoioai 

iQ ^ivnbi:;lB eilT ".©(ton bl£2 sxij lo STSoijar^. sdJ lo ^loiaa^le edS 

^jsq o.t fcsaxf'ts'i fcns fteXisl onaeX^a ;taiW t)9d^;tJbrtbB ©aiiel^ft bOM a;tln«« 


said note and the accrued interest thereon. 

The record discloses that plaintiff purchased the demaiMi note 
involved in this controversy from Robert J, Spahr. Rraneesca Mangano 
and Dominic Mangano were the makers of the note. The payee named 
therein was Ralph Salerno who indorsed the note in blank as "Ralph 
J. Salerno" and also indorsed same as "Rosario D. Salerno Sons By 
Ralph J, Salerno, Owner" to Robert J, Spahr, who in turn sold and 
indorsed the note to plaintiff. On the line near the top of the 
reverse side of the note Salerno attached his signature "lialph J» 
Salerno" as indorser. About an inch and one-eighth below the line 
on which said signature appears there is a heavy black line. Commencing 
five-eighths of an inch below said heavy black line is a printed form of 
guaranty three and one-quarter inches in length. Written in ink across 
this printed form and Just above the center thereof are the words 
"V7ithout Recourse," There is also a large Inlc cross which extends 
through almost the entire portion of the printed form of guaranty and 
which also apparently extends through the words "Without Recourse," 
It was below the printed form of guaranty, across which the words 
"Without Recourse" were written, that Salerno attached his signature 
under the designation, "Rosario D, Salerno Sons by Ralph J, Salerno 
Owner," Immediately below Salerno *s signature as last above indicated 
is an ink line and then follows Robert J, Spahr 's indorsement of the 

Plaintiff testified that he purchased the note f^m Spahr, 
that nothing had been paid on same, that proper demand had been made 
fot payment, that same was refused and that notice of protest had 
been served on the indorser s. The note, after having been identified, 
was received in evidence. No evidence was offered by Salerno, 

Upon the trial of this case, in his endeavor to clarify and 
narrow the issues, the trial Judge interrogated Salerno's counsel 
as follows: 

"The Court: *** However, the only point made in the defense is 
that it is a special endorsement. Is that right? 

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8l«s;txa xioiflw ssoio :!liil sg-i .saxeoDsS jWOOWiiv" 

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".©ciiroosH d-xfOiiiiW" s&io< :&fi©ix» ^Id-ziBiaqqiG oeis riolriw 

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oaiBl&L .X, fiqlc/T -^tf anou otnEsl£.' . ^ctol^^^nsieafc eiiJ- isbmi 

i£it lo: d'ffsaisaiotiai e'lrijaq: . .tfoil awollol n&ri:^ bnB ©nil jlnl rus al 

9£>Bfit £iB9<2 bad ba&m&b iBqoiq ^Bdi ^muiz ii© blaq ii»«d bBxi anlricfon ;fiiii^ 

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,on'i©XB8 x<^ bsisllo aj5w ®©aefcJ *90flefeiv» cl bsvtei eri aaw 

;-. &3n»lef) «rf* Itt »baflf iatoq x^^tio eitf j^ovewL :^ijw0 odT" 

"Mr, Plame: It is the chief point, if the Court please, 

"The Court: The chief point - it is the only point, isn't 
that right? 

"Mr. Plame: That is right," 

In Salerno's brief his counsel criticises the conduct ©f the 
trial judge because of his interrogation of counsel as above indicated 
and argues that if there were triable issues presented, the trial 
Judge "should have determined what they were" solely from the plead- 
ings and that "it was improper and unfair to persist in an attempt 
to extract an oral admission from Ralph J, Salerno's counsel that the 
sole issue in the case was whether Salerno's endorsement was general 
or qualified," It Is the duty of every court, whether trial court or 
reviewing court, to clarify and narrow the issues ia a case, whenever 
it is possible to do so, ' e can conceive of no better way to ascer- 
tain what the real and material issues are than by eliciting such in- 
formation from counsel who should be familiar with his case. Counsel 
having made the admission to the trial court that the sole issue in 
the case was whether Salerno's indorsement of the note was general 
or qualified, Salerno Is bound by such admission. 

Thus the only question we are called upon to determine is 
whether Salerno's indorsements of the note were general or limited 
or in other words whether they were made without qualification. There 
can be no question but that his indorsement appearing near the top 
of the reverse side of the note was general. As has beea shown the 
words "V/ithout Recourse" written as they were about three inches 
below Salerno' 3 indorsement at the top of the reverse side of the 
note and separated therefrom by a heavy black line, which was an inch 
and one-eighth below said indorsement and extended entirely across 
the back of the note, could not possibly refer to or have any connec- 
tion with Salerno's Indorsement at the top of the reverse side of the 
note. Section 38 of the Negotiable Instruments act (para, ^8, chap, 
98, 111, Rev. Stat, 1941)^ provides in part that a qualified indorse- 
ment "may be made by adding to the indorser's signature the word* 

^qffiS^^s ite, at d^aleisq oJ- ilsljio ba& 'isqoiqiEi aaw :fi" cfsrii baa eyil 

od^t ctfiri^ I«anttoo e'onielaS .t xl<|XifiH mcxl noisBxajts liio as io&xtx» oi 

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,nolselEfes rioue x^? fan' iisXsS ,fcsllllfii:jp rio 

si snlffiiocJ-pft o:} noa;.; &:3IXj»o eie svr noX^aei/p tjXho sdJ amlT 

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cjod" 9xict ^ssfl siiltBsqqs iaem^ziobnt shi ii'sli imi no.tcf-ss'i/p on &€ a&o 

f.jfi:! nwofls R&oci aad bA .Xsisnss asw ©Jon Bdi Jo eble ©erfsvorr &di lo 

asiloni •eirid' JuocfB s'i&n -^srii as usd-d-iixT "saiJjoooH iuodii}!^" zbicm 

9£id- lo efcle sai9Ve"i ©ri;t lo qo.t ^rd;} ia iaemBsiobat r'oni©Xs8 woXscf 

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.cQ'ic„ \l&it&ci& be^ba&i-xB bM.& :^aBmt'&%obnl bxee woX®^ ittrisis-sflo bam 

— aennoo -^b ev^rf -o »>■ r^'ycM- y.r<r^^ :ton bXxfoo »»Jon 'sdi lo afoad ariJ 

sdd^ to ef>la dBisv^* ..... . . ,„, ..:. ... Jxieoes'iobnl e'onrrsXisS irfilw noli^ 

ubrrow srict s^ujctsaaiE g^iee^obxil ©itJ ol sctlib* \q o;:^:^ ou ^.j;" -'new 


» without recourse » or any words of similar import," Since the words 
"Without Recoiirse" were written on the reverse side of the note in 
the manner indicated they could not possibly be considered as having 
been added to the indorser's signature near the top of the note. 

Salerno »s second indorsement under the designation "Rosario 
D, Salerno Sons by Ralph J. Salern© Owner" presents a somewhat 
different situation. As has been seen this indorsement was written 
below the printed form ©f guaranty, across the body of which were 
written the words "Without Recourse," It is agreed that the ink 
cross drawn through said printed form of guaranty eliminated the 
guaranty from the instrument. However, the trial court was unable 
to determine from an examination of the reverse side of the note 
whether the words "V.ithout Recourse" were written over the ink cross 
and after said cross had been drawn through the printed form of 
guaranty or whether the ink cross was drawn through the printed 
fom of guaranty and the words "Without Recourse" after those words 
were written across said printed form of guaranty. Neither are we 
able to determine this question from an examination of the note. 
While It was within the power of Salerno to present evidence to 
explain this ambiguity in the instrument and to show which was 
placed first on the reverse side of the note, the words "Without 
Recourse" or the ink cross, he did not see fit to do so. It has 
been repeatedly held that, where one of the parties to a law suit 
has it within his power to produce evidence material to the issue 
or issues involved therein and he fails to produce same, it will 
be presumed that if he had presented such evidence it would have 
been unfavorable to him. 

We are impelled to hold as to the indorsement "Rosario D, 
Salerno Sons by Ralph J, Salerno Owner" that it has not been satis- 
factorily shown that same was made "Without Recourse," In any event 
the ambiguity as to the character of this indorsement was not ex- 
plained upon the trial by Salerno who had it within his power to 

eJb'icjw aff^ sonic «,;?'ioqaiJ: 'i&LlssiB to efeiow "^ca 10 »©8ijaroD€>i iuoililv* 

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'lo rr^'io'' bftcfxiliq ©xij xl3Xfoiri;t nwaub n9«cf fjsd aaoio bt&t iBit& Uib 

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Bfciow Qsodi TEj-le "sBiwooeH ;ti»©ddlf" efc-iov sAf feos ^iXBTMfs Ic aiol 

ev ©IB leri^tlGlI ,x;j£i*iisi/a To ciol oelnliq blsa aaoioe a©.i:tZ'x«r 9%&9 

?iioxijl=:" e&iow sri^ ^&;toii ©riJ- lo «^e, ^zi^vii eil^ no j^aiil bsdelq 
aari ;tl ,oa 00 o; ;il ea« joa blfe sri ,asoio iini silj 10 "seiuoosfi 
d-lifs wfiX £ oj esljisq &d:i lo ©no 9i&ri«^ ^isdi blttd xlbBi&Bcisi floecf 
stfaai eifct &;f XiiJkioi^BjB 9i»aei>i:vr soijfco'iq oJ iswoq 6hi nJfcii^lw Ji a^sri 
XXiw cfi ^siOBa 9ox;feotq od^ eXisl »ri l«tB nietc&ilj b«vXovjsi a&Xfaai lo 
©▼ad I/Xj-'OW ;tl sonstiv^ rioua oecfneaenq bsil eii 11: ^sdi f^sau/asaq eo' 

♦alii Oj eX<ffiioT*lnir n»»d 

aiTBEoa" J-aefflesToisnJ: 6d:i oj as fiXori oi beXXsqstt ^iia ©^' 

- ': .;. r.^ecf Jofi ssii ^1 ifiji;t "isnwO onneXsS ,T, dqXaH x<^ ano£ onieX«8 

*ii9V9 ''SftB ill -'tQzisiOo&E JcojdJ'lW" ©bflffl esw aiifie isdi joworia -^XlToJoal 

-X9 :fon EBW d'nsneanofcnX elrii lo ne;toeii5Xlo 9di oi s^: xjli/sldouB sdJ^ 

0* ^©woq Btd nXri^Xw J^J: bAii orfw omeXsa x<* XfiliJ ffdi ftoqjtj feaalaXq 

make such explanation. Since the first indorsement of Salerno near 
the top of the reverse side of the note was unqualified and since 
the second indorsement made by him must be considered either as un- 
qualified or at the best ambiguous in so far as he is concerned, the 
trial court properly held that plaintiff was entitled to recover. 

We have considered the other points urged but in the view 
WB take of this case and for the reasons heretofore stated we deea 
further discussion unnecessary. 

The Judgment of the lluniclpal court of Chicago is affirmed, 


Friend and Scanlan, JJ,, concur , 

.lavosL-' ^3u? 'Sti:faJiAlcj cJ-sril bl'^d x^*ir^ .? oo Xsiicf 

w3iT »xi:* Hi ^iftf bes«; a^ixJtoq iffdfv &tiS b9i»bleMos> «vsri s 
ui^af) sw •oil 8noa.::i?'S erfJ- io*j. lata saso sJtii;^ Tto aAet ©w 

i^ij^onws ,,X>T. <ji3fliii3dv: ftaa Sia©lil 


317I.A. 3T5 



SEARS, ROEBUCK &*C0«7*"g!§^*^BAgS, ) 
IRTERKATI ORAL, INC , , ^O^Ji-pora tions";^-*^.-^^, 
Appellees, ) 


Th4f^" appeal by plaintiffs. The Lictorio, Inc., and Luigl 
Mariap^ill, seeks to reverse an order of the trial court which 
sustained the motion of defendants. Sears, Roebuck & Co«, and 
Sears International, Inc., to strike plaintiffs' amended complaint 
and to dismiss the suit because said complaint did not state a 
cause of action. Plaintiffs did not seek to file any further 
amended complaint. 

For a clearer understanding of the questions presented 
it is necessary to set forth in full those portions ©f plaintiffs' 
amended complaint upon which their claim is predicated. 

They are as follows: 

"1« THE LICTORIO, INC,, is an Illinois corporation duly 
organized and existing under and by virtue of the laws of the State 
of Illinois J LUIGI MARIANELLI is a citizen and resident of Chicago, 
Cook County, Illinois* 

"2. SEARS, ROEBUCK & C0» is a New York corporation, with 
its principal office and its principal place of business in Chicago, 
Cook County, Illinois} SEARS INTERNATIONAL, INC., is an Illinois 
corporation, with its principal place of business and office in \ 
Chicago, Cook County, Illinois* 

"3. After extended negotiations, on or about April 26, 1^38> 
Sears International, Inc. addressed to plaintiff Luigi Marianellii^ H 
letter in the words and figures following, to-wit: 

3300 Arthlngton Street 
Chicago U.SJL 

•>iif ,X. \. X O 



^ "■'■■ 

»THUo,o SHT '50 iiltiHi'io SHY osHSVLisa HATiJjtra soitEUt micneairq .^ 

fCsiXilw d-':UDOO Isli^J- eri;J- lo lefcld iije^'98i©v»«E at arf«©E ^tlL»azlraiS. 

.d^niisXqisoo bsJbnsaiJB 
bs^nesenq aaolj29x;p ©ild' lo snlbnscJ-aisfefu; istrselo a i&% 
^ zlltialzlq lo aaolSioq ssodS Ilifl ni riJ-iol ise oi x^fiseaosn el J-i 
,bod-j3oi:b0iq ei ml&Lo rlQd^ xloirfw aoqir J-wisIqcioo b^baeoB 

I swoXIol 8s SIB Y^ri'-^ 
Xlsjbaoli &toqioo Blonllll ns ai ^,0%I ^OIHOTOIJ SET ,1" 

^oaisoixlD lo d-xi9f)l2si tojs a8sl;tlo s ai IJIi'MAIHAM lOIUJ ;3lofllIII lo 

ild-lw ^noXctBioqioo i-roY wtsH b at ^00 J?j 30US?^0fi ,afiA5rs .S" 
,.03£;3ix[0 Gi aasnlsjjcf lo ©oslq iBqioniiq ecti: 5n.s ©oillo I«qionlnq ad-i 
slonilll fiB al ^.OHI ,JAH0ITAKfl3THI BflAHE jaloailll ^TtctrufoO iooO 
/Ji ©ol'i'io 5n>D aaenlaircf lo soslq laqlonliq a^i ri.tlw ,noid-sioq^oo 

^ai:oiiJ:III ^x^nl/oO afcoO jCssoJLdO 
^L^^I ^ds XliqA ctuocfs io no ^anol;tisl.+o30fl bsMsJxo 10JIA .£" 
■h ^trXftnet'iJsM isli/vl lllin±«Xq od^ b9B^-B^hbi5 ,j>nl ^XsnoirdsnisJ-fll aifisS 
sd'.N— o ' ^^rf.r'?riXiol a9iir::s.t'' hcr p.foTov; «riJ" at ifi:iS9l 

I.uto.':-.: -xrrieial 

April 26, 1938 
Mr» Lulgl ICarianelH 
9924 S# state Street 
Ciilcago, Illinois, 

Dear Mr, Marianellii 

The following is an agreement concluded the first day of 
Kay, 1938, between you, Luigi Marianelli, and Sears International, 

As the author of a project and sch©B» to develop more busi- 
ness between Sears International, Inc., and Italian Governaient 
Agencies, private persons or corporations of Italy, we confirm 
our understanding that you agree to go to Italy within sixty (60) 
days after lay first, at your own expense, in order to contact and 
develop the business mentioned above. 

Sears International. Inc. hereby agrees to appoint you as 
their temporary representative for Italy, its Coloniss aM 
Possessions, for a period of six (6) months from June 30» 1938. 
for the sale of their products according to the plan outlined in 
your project incorporating the exchange or part exchange of such 
merchandise of Sears International, Inc., which you may sell for 
goods furnished by Italian Government agencies, firms, or private 
persons with whom you may be dealing. It is to be expressly under- 
stood that any arrangements of the above nature which you mi.j make 
are subject to written confirmation by this office. 

In view of the fact that our present purchases of Italian 
goods are relatively small, it will be necessary f r you to inves- 
tigate thoroughly the Italian merchandise or raw material which, 
in your opinion, might be purchased by 3ears International, Inc« 
or Sears, Roebuck & Co, in exchange for ;3ears International, Inc. 
goods, sold in Italy. This will Involve the supplying by you of 
samples, prices, etc. It is understood that if a purchase of 
Italian goods, on the basis outlined above, is agreed upon, you 
shall cooperate closely with the buyers of sears International, 
Inc. or Sears, 'oebuck & Co, who may be appointed to handle these 
transactions. It is further understood that jears Intern^itional, 
Inc, makes no conmlttments whatsoever regarding the purchase of 
Italian goods in question as the decision regarding such purchases 
will be made by the interested buyers or executives of Sears Inter- 
national, Inc, or Sears, Roebuck & Co, 

Sears International, Inc. further agrees that if, after 
the expiration of the above mentioned trial period of six (6) 
months of your appointment as their temporary representative for 
Italy and the Italian Colonies and Possessions, you will have 
secured business acceptable to them of not less than $100,000- 
you will be appointed in the same capacity for an additional trial 
period of six (6) months In order to bring to a conclusion aixy 
business transactions which yxsu may have started. If, during 
this additional trial period of six (6) months, the sales of 
Sears International merchandise made by you and accepted by us 
exceed $2^0,000, you shall be appointed permanent representative 
of Sears International for Italy, its Colonies and Possessions, 

Following your appointment as permanent representative, 
after the expiration of the above mentioned trial periods of time, 

a six month's notice will be required by either you or Sears 

8r?X ,as XirP3A 


. b 

::vn ovo 'a 

i " ■ ■ ' '"'"""• iv ii:. 



■ i 




International, Inc. if it will be your op their desire to cancel 
the agreement in question. 

While you have verbally agreed that you will not represent 
any other firm or corporation or interests in Italy or its Posses- 
sions other than Sears, International, it is understood that you 
may reserve the right to participate as stockholder, officer, 
manager or in any other capacity in any corporation or organization, 
or to promote schemes or projects for industrial, commercial, or 
financial enterprises in Italy and its Possessions, It is further 
understood that you reserve the right to form a corporation, pre- 
sided over by you, in order to represent you and your interests 
with Sears International, Inc., and to further develop the business 
relations between Sears International and Italy or its Colonial 

IVhil© it is understood that all of your expenses are to be 
borne by you. Sears International agrees to pay you a commission 
amounting to 7-l/2^« of net f,o,b^ factory sales value of Sears 
International, Inc. merchandise sold through you to the Italian 
Government, firms, or private individuals in Italy, its Colonies 
or Possessions, with whom you may be dealing and accepted by Sears 
International, It is understood that a sale of such a nature is 
not to be considered completed until the mercliandise is received 
in Italy and paid fop. Such commission is to be paid to you at 
the expiration of the above mentioned two (2) six-month trial 
periods and at the end of each fiscal year thereafter, when and 
if you are appointed as permanent representative of Sears Inter- 
national. Inc. in the above mentioned territory. As such commis- 
sions will be accumulated on the books of Sears International, 
Inc, at the end of each month. Sears International, Inc. agrees to 
allow you to draw up to 50% tne amount of such accumulated earned 

This agreement is being submitted to you in duplicate j 
kindly sign and have witnessed the duplicate copy of this letter, 
on the line indicated below, and return for our files with the 
least possible delay. 

Very truly yours, 

(S) G. L, Artamonoff 



(S) Gertrude F. Fricke* 

"Said letter was accepted by plaintiff, Luigi Il^ris-^^^li* 
as appears at the bottom thereof; the said Sears Intetfn$,tional<^ 
Inc, is a wholly owned subsidiary of Sears, Roebuck & Qf^,, and 
said contract evidenced by said letter and said acce|yta]ftce of 
April 26, 1938, was a contract for the benefit of Sears^ Roebuck 
& Co., particularly for the sales of products of Se^rs^ |R©ebuck 
& Co., defendant herein* 

»«♦ * * i 



— ,'^ ^ ■* .-t** ^rf ^—r Tr"^ •*/> 

; , ■ ■ :i 

?-e- . . ^ . Iw 

/ '■ ^ , ■'■.'"■. t 

I-..,r '■" :j''' ■■■ft ^ ■■ '■ . '■ . . .i 

-1G. ■ ' t 

^etaoilqifl) III 130-^; O'J 
©xi^ xl;tjtw tit'llt ^a» '^bsI isij:/^91 fcas ^woloci' fee. lo 



"7. As provided b7 the letter of April 26, I938 frc» 
Sears Interna tionsl, Inc, to Luigl Marianelli, there was formed 
the corporation, THE LICTQRIO, INC., an Illinois corporation, ©f 
vMch plaintiff Luigi Marianelli was the President, a director 
and stockholder; the said THE LICTORIO, INC, advanced to plaintiff 
Karianelli his expenses, for the purpose of making a trip to Italy, 
as contemplated by said letter of April 26, I938, but did not pay 
the said Marianelli, nor has anyone else paid the said Marianelli 
for his services in connection with his trip to Italy; that shortly 
following the said letter of pril 26, 1938, and on &r about July 
12, 1938* ttie said Luigi aarlanelll proceeded to Italy, in pursuance 
of the contract and plan adopted by the plaintiffs and defendants, 
and thereafter for approximately seven months pursued said plans in 
Italy with various officials of the Italian Government and its 
colonial enter prises J that said efforts of said Marianelli resulted 
in plaintiffs securing from the Italian Government a memorandum of 
Italian products which the Italian Government was willing to sell 
to Sewrs, Roebuck & Co,, and a list of the products which the Italian 
Government was willing to buy frcai Sears, Roebuck & Go», in addition 
to the purchase of prefabricated houses, in accordance ¥idth plans 
and designs furnished in books supplied by the defendants to 
Liarianelll and by .'aim delivered to the officials of the Italian 
Government; that said Italian products were to be paid for by Sears, 
Roebuck A: Co, from funds deposited in banks of the Kingdom of Italy 
to its account in payment for the products sold to the Italian 
Government, and particularly t© its Italian Colonies in Italian 
East Africa, by Sears, Roebuck & Go, 

"8, After the conclusion of the negotiations ©f the plain- 
tiffs with the Italian Government and its various agencies and 
representatives, the said Luigi Marianelli returned to the United 

States and reported to the Vice President and President of Sears 
International, Inc., the result of his efforts; that on this and 

lo ^iioj::f.^-oqi'>j) sloaLtXZ ,. "•ri ,OI3iOTDIJ iSHT ^noWaio«[*cot) »ftf 

■^jaq ton ^16 ;fjycf ^8£^X ^^S liiqA lo t«;f;tsl &jt«a "y;cf b©d'jsiq[i5i9d'noo es 
illsKislTsSC fcxse sxli b-teq eala sjmo^b aari ion ^ilXensliJsIf feisa si?^ 

viift .tjTOcffe 1© no hcs t8£^i t^S ■^•^'^^:" ^*^"t *-^*2 Slid- s«iwoIXol 

ni s0>.Xg Jbiijg fesiratc^q ariJaoM a®v®a ^Isfd-.swJtxoiqtjB lol Tod"5j>oi»rfcf hah 

Ilea oj snxlliwf zm :fn€?ianTov-r ri:J:j:ft.tI rrl:"- rioWw aisifboiq fifilX^il 
.^Xb:^! «?fro iin.afv' ^Cclr■o'ic ri- -:■ ^. & ^lonrf^o^ ^etaeS ot 

aol.tlM --:"; ^, . ^ ■ ncil "pro' ocT anllXi ■ nossitevoO 

.; ?;,-fa'-r;ii9lt©£> «ucii Afcf JbeiXqqx/e ajfootf nl b^xieist'tv^ ansla-b .5ns 
i:.:!!-; _ ..- lo aXsiolllo ©rf* o;t betevilob mtri -^cf bn,is tXX5in.3ii«SI 

vIsjI lo ssofjsxiiJi &£ii lo g^ed ni fi«9;tJtaoqefe s,bmst aioi'i ,oO A 2loxrcf«oH 
xtisJtXs*! aiid' o-^ fcXoe k^t^uboiq 9>cl& -lo'i J-fisisr^aq ni «nuoosfi a;tl oJ- 

bHB eeionesE sjuoIibv r:I-1 fens d^aejncrisvoC nijJfcXje - 1 sxL fi^lw e'lJtJ- 
,,-^.,.ir o.-;. Qj: Ssjtixjd-*)'! IXXenBlTJsM JfegXxfcl ftiss 9di ^ecr/ ---^-^ ■•■ ••■ '^^-' 

iaifi Elxi* no -Jtidi jat^o^l© eirl lo ^Smz^i dfW ^.otnl ^XfifioJtcfBnir:faI 


other occasions the said Vice President and President of defendant, 
Sears International, Inc., expressed themselves as well pleased with 
the success of his endeavors and stated to the said Marianelli that 
they had no doubt the plans which had been accomplished by the said 
Marianelli in Italy would be carried forward by the defendants here- 
in, but that it would be advisable to submit same to one Donald 
Nelson, a Vice President of defendant. Sears, Roebuck & Co., who 
was then out of the City of Chicago, Thereafter plaintiffs received 
a letter from the defendants, copy of which is attached hereto and 
made a part hereof, merked Plaintiffs* Exliibit 4| that said ?ic8 
President and President of defandant. Sears International, Inc., 
asked the plaintiffs to submit written reports and proposals with 
reference to the services which had been performed by the plaintiffs 
in Italy, all of which the plaintiffs proceeded to do, 

^9, Thereafter plaintiffs were informed by the President ©f 
defendant. Sears International, Inc., that the report of plaintiffs 
had been submitted to Vice President Nelson of Sears, Roebuck & Co, 
and that he in turn had submitted the report of plaintiffs to Genferal 
Wood, the chairman of the board of directors of Sears, Koebuck & Co, 

"10, That with the consent and permission of the defendants, 
one of the stockholders and officials of The Lictorio, Inc., was su 
employee of defendants, and that when plaintiffs reported to the 
Vice President of Sears International, Inc., Mr, Kearney (on or 
about March 6, 1939), the successful termination of the plaintiff! ♦s 
negotiations, the said stockholder and official of the plaintiff 
corporation, then asked the said Kearney whether or not It was ! 
necessary to renew or proceed with the signing of a new Agreement 
with The Lictorio, Inc., or the said Marianelli, or if he, the s$ld 
Kearney, still considered effective the one signed between Sears 
axkd Marianelli, dated April 26, 1938; that the said Vice President 
Kearney, of Sears International, Inc., stated that inasmuch as the 
said Marianelli had succeeded in bringing to such a successful con»«* 


l>Jtse dxi^ -^d l)9£isi:Xi{<so39s a^mS had liaJt^w Sixalq stcit Jdnob ^a b&si X'^^ 

hhiaoQ &£io est etase ,tiiac'x;a o<l- ela.a«iv&6 ee JbXito^ ^i ;tdrf# Jm! ^al 
otivr j^,c>0 .* xosjiiSoS. ^aiss<3 ^oitsfijiSi.'^^ lo d-iie&i£S'i=i sal"? fi ^aoalsH 

£ifl« o4'»'S9iri feftilosJ^J^fi 8X 4»Jtiii# iG -^qoo ,«d-£i;siai«ls£t sd^ coil i'^;t»X iS 

iiShf cXjSEoqoiq fij0U» s;tiocti«i rie^d^i-sw oJ-Jtaaira oi alllinxaXq arij Jbejiaa 

,o£). oi J&sbseao^q el'^X;?riJt;f?Xq sdJf ^olxlw ^o XIa ^X-J^is^I ixX 
lo imhlBB'ifi edi -^q' X)Sino%tX ©icew eltXinXfiXq •s^Jtlssiarii: .^'^ 
a1:T:l.fnXsIq lo wioqs^ Biii issd^ ^,qliI ^XsaoXiBU'isial &i[»»3 ^in&baslfib 

ii;8 2£w ^,QaI ^oIio^j'jUl edT ^ aXsiclllo fma fii«Mofi2looJs ati^f lo quo 

^d^ &j 6&;tnoqai slli.tiiXjBXq asriw ii^ij ruts ^aiixsiMslsJl* to *«»x«Xqfi8 

lo no) x®n'^se2 ♦iM ^.»nl ^XiwsoXijeriie^tfll sissS "io *iiajfeX«»'rS[ ©olT 

.•:; ' 'llX.:taXaXti ad;}" lo fioXi^afilasi©* Xwlae©»St»« ®4^ »(?£^X %^ AsiaM. ^^oooTs 
llX.l«i.%Xq syS.t lo XsXoi'ilQ 60* le&Xorfjioo^^e kt^a tidi ^eoDl^iil^tojjsn 

tlasi mli ^&d li 10 ^IXXaauliaM bt&s BdS to ^.onl ^oi^tci-oiil ext^' dfXw 

a'ii-.eS aosw.-t®<f ftsflgla eno eitt arj'i^Joel'ls Asaaiiiciioo XXiJ« ^x^aiaBl 

:?i£ofcJ;e3i'-i apiV f)XEa ©XiU c^aitJ i"8£9X ,^S XJfciqA J>©^Efe ^XXXeftalisM baa 


elusion the negotiations for an amount wMch was so much above 
what they had asked of the said Marianelli, that the plaintifi^s 
had the right to another six months' time for the purpose of 
bringing to a conclusion the negotiations with the Italian 
Government; that consequently it was not necessary t© siake out 
another contract* 

"11, That during the negotiations between the plaintiffs 
and the Italian Governiaent, its officials and representatives, 
all of which was reported by the plaintiffs to the defendants, 
it was agreed that the amount of goods which ^ould be inter- 
clianged ©r exchanged between the said Italian Government, its 
colonial possessions and industries, and defendants, 'A'ould be at 
least $1^,000,000 during a two-year period| that upon said amount 
of money, the plaintiffs would be entitled to a commission of 
7-1/2% by virtTie of said letter of April 26, 1938, hereinbefore- 
alleged , 

«12, That the plaintiffs performed all of the ob.ligationi3 
and agreements assumed by the plaintifi'sj that the defendants 
accepted the services of the plaintiffs, and the expenditures 
made by the plaintiffs on behalf of the defendants, without asy 
objections, with full knowledge thereof, and expressed approval 

"13, On or about Hay 11, 1939, the plaintiffs received 

from the defendants a letter as follows: 

•Chicago, May 11, 1939. 

Ur, Luigl !Jarlanelll 
The Lictorio 
201 N, Wells St, 
Chicago, 111, 

Dear Mariana Hit 

I am sorry to state that the executives of Sears, Roebuck 
&. Co, have decided against the consideration of your proposjal at 
the present time, for various reasons which I can probably better 

explain personally than in writing, 

I regret exceedingly the trouble to which you have gone. 


evod's dtim oe estr .'iDirf'sr c^^0oaLB jke •rot an».WaiJ'os^?a anf* ooIex;!^ 

"'^^al 9(S fclJiiow xlolrfw e!>eo3 1;o Jauois^ ©fi^ cj-sfid- l)«tsia« ««w tl 

J-SJK3IMJ3 blss BGqj? *wdd ^fcoli^q xas^'-owd' 1; gntiiib QQO^OOQ^'^l^ in&9l 
■■'io'iscfnls'rfrl ^8,^?X ^Is; IliqA ^o letcJ-©! bte.z Jo otr^itv \'€f ^Xl-'v 

Yds issodjs^ ^Bitftsfefie'tef) e!i& lo IXsri*^^ no 8ftli:*nl«Xfj a^ x^ »t«« 

,111 ^o^BOliiD 
i£XXsiiaJh[£M iseC 

.sxxi:tliw ni naiiS >eXX.anoa:treq aliiXtpca 


but tinder the circumstances there is nothing we can do. 

Very truly yours, 
G, L« Artamanoff 

"14 » Thereafter the plaintiff, Marianelll, talked with the 
said Artamanoff and was informed that the chairman of the board of 
directors of the defendant Sears, Roebuck & Co., General Vvood, had 
decided that the Jews in the United States were going to conduct a 
boycott of Italian goods because of the adverse action taken by 
the Italian Government toward Jews in Italy, also that there would 
be a World War and that these were the reasons why the defendants 
had decided to discontinue consideration of the plaintiffs' con?^ 
tract with the defendants, 

"15* Frcaa the foregoing facts, the plaintiffs claim 
damages in the alternative, as follows: 

"1, For the reasonable value of the services of Luigi 
■arianelll and The Lictorio, Inc,, in connection with negotiations 
with the Italian Government, its representatives and industrial 
co-operatives, the sum of $100,000, and, for the expenses of the 
plaintiffs in connection with negotiations with the Italian 
Government, its representatives and industrial cooperatives, to- 
gether with its reasonable office and other expenses, the sum 
of $30,000. 

"2, A commission of 7-1/2% upon $2^,000,000 ($12,5»00,000 
of exports to Italy by Sears and an equiva3[.ent sum of imports from 
Italy by defendant), of goods, wares and merchandise which were 
agreed to be exchanged between the Italian Government, its offi- 
cial representatives and cooperatives, and the defendants, being 
the fair and reasonable as well as customary compensation for sueh 
services as the plaintiffs performed for the defendants, amount- 
ing to the sum ef $937^500, 

"3. To the contract compensation of 7-1/2% upon sales con- 
tracted to be made by the plaintiffs for the benefit of the defend- 


6X»©w «^9iW. d-srfj osXid ^x-l^Sl ill 3weL ^T«wo;t ^asginisvoD aalXaJ-J exlv'^ 
a^fls&aslsi) ©xfd- ijdff anoaae'i ledd" c-asw sa«a* ctsil^ bna laW fcXiK)'i? s stf 

igXfiJ lo 2soJtvasE erW 1o ®&X«v sldsucBss^ sil^ "sofi ,X" 

,00Q^0€-> to 
000 <^ 00:5 ^SXsi) 000^000^^^$ iiqqjj ig£\X-V to fioieaiifiiwoo A ,2" 

eiaw liolilw ©eiibo^o-xsaj baa &9'iav ^sfcoog lo ^(;fn.efoa©^©b x^ xts,il 

^i^tf «e:^aj3bfi©l!Dl> ed^T bixff> ^a©vi:c}-i»Ti©qo«6 Jtafi a&vi;t£;riiaae>'!q©i XbId 
rlof-'C lal floijisaasqeoo ^lamo^lexfo as XXsw ajs sXdjssaoas&i fenf. iIjsI 9tiS 


ants, amounting to the sxm of $12,500*000 to the Italian Govern- 
ment, its official representatives and cooperatives, $937^500^" 

By reference in the amended complaint the following among 
other exhibits were attached to and made a part of same; 
Memo randini 

The goods which the firm Sears, Roebuck & Co« of Chicago 
should consider the object of exchange between Italy and the 
United States would have to be in the main as follows: 

Sold to the Italian Market t 

Oil of Cocoa and Palm 
Vegetable and animal lard and fat 
Molasses (up to a maximum of 4 laillion lire) 
Paraffin (up to a maximum of 15 million lire) 
Colophone (up to a maximum of 2 million lire) 
Scrap iron and steel 
Scrap tin and its alloys 
Steel in bars, in blooms and billets 
Steel pressed in sheets 
Copper and its alloys, in baps and scrap 
Mineral oils, raw 
Raw hides 

Machine tools (with the express rlght^io indicate the 
types of machines and tl^ produoers^^the same) 

Sale of Italian products to the U. S. market (chiefly in 

the zones of the Middle West and Far West )« 


Wines and liquors 


Twines, strings and ropes of flax, linen and ramie 

Embroidered textiles, embroideries and laces in linen, 

flax, etc. 
Carpets of all kinds (in flax, jute, wool, Borra 

of wool) 
Textiles of all kinds (Including those for tapestries, 

furnishings sjid sacred vestments) 
Trimmings and ribbons of silk 

Linen, also embroidered} personal, sheets and of rayon 
Ties, shawls and scarfs of silk and rayon 
Hose in silk and rayon 
Cotton gloves 
Leather gloves 

Buttons of bone and Dun palm 
Finished hats in woolen felt 
Finished hats in straw 
'.Vorked marbles and alabasters 
Decorated majolicas, for table and furnishing 
Vi/ritlng machines 
Instruments and apparatus for surgery, orthopedics, 

medicine, etc* 
Works in blown glass, pressed, cut, stamped, incised 

(decorative objects, M\irano Lamps, Chandelie*) 
Pharmaceutical and medicinal preparations 


«<iievo€- a&ils;^! 9di oS OOO^Op^^SI^ to sure ^sii Qi ^aXiaeosi& ^^ias 
XiHOE-s g^ivsroXXcl Oily dxrifilciffioo befinsais «>ri^ nl ssnsisl&i x^ 

OSBO±dO "j-o ,0 -'- 

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(stXX iSolXXiis ^X "to ._, . . ?-; b o:t , . ^ 

(siJtX floiXIlat S 'io istJsnXXiSci £ oj- qa) 

X©e:^E &n£ 11- _:: , -l^ 

aijiaXXB 2;tl iifla iiiJ qsT^sS 

q.i^Toa bn^ e^iirf ax ^a\. ...... .-.- -.;.. - pO 

wsn ^aXio l&ieatM. 

I, ■ .;il 
~,rr' .^-^..<. •; --^ ■ '- .seiqx© 9rf:t ittiw) sXcc;.. ..„..:iM 

gi.il3Mg£lJ-;;:^.;;i;. . ' -jl 

arioijpiX tCB 


ja^^xo^' ^Xoo«r ^eAiJl tXJsXI nl) sbxiXst XXjs lo - 

3sIXe ■!: '^T 

uo-^B'i lo bus E-jSoxiT; ^Xfifloatsq ;. -J 

ao^ci friiij i£Xl2 lo ;■■..:..■., i:! 

IXs'i fiyXoow ; 

Si:ii£>BJ:ii'.j..i. i>n3 tvXtfBJ" 10'. ^i.i5:,. 

Perfumes and toilette articles of all kinds 

Leather work (purses, pocket books, desk sets, etc.) 

Shoes and slippers 

Sport articles and suiJbs 

Arts and craft products not included under the mentioned 


For the following products of importation there could be 
consented to Sears, Roebuck & Co. a slight preniium on the prices 
as at paragraph 4 of the appended letters 

Oil of Cocoa 

Vegetable and animal lard and fat 



Scrap iron and steel 

Scrap zinc and its alloys 

Both the above lists h£V3 an Indicative value and in the 
meantime we reserve the right to add changes in the future,** 



May 5th, 1939 ♦ 

Mr, Luigi Marianelli 
The Lictorio 
201 North Wells St, 
Chicago, 111, 

Dear Mr. Marianelli, 

I have your l-';tter of May fourth. The question of the barter 
deal with Italy has been discussed with Mr, D, M. Nelson and a 
full report lias been sent to Gen, 'Vood who happens to be in 
Washington at the present time, for his comments and suggestions. 

I will commxinicate with you Just as soon as I hear from the General* 

Best regards. 

Very truly yours, 

(S) L, G» Artamanoff 

"pl;.intiffs » exhibit 5^ 

Chicago, April 24, 1939 

Sears International Inc., 
3400 W, Ar thing ton Street, 
Chicago, Illinois, 


As I have explained many other times (and as was also suggested 
by Comm, Dr. Ballerina, Royal Counselor to the Italian Ambassador 
in Washington) it is necessary that Sears give a prompt reply t© 
the Italian Government regarding the plan of exchange that we 
proposed. Any delay would jeopardize our position and the various 
Government officials interested in the project would, in due time. 

afcntJf 11& lo tp£9liiB 9i&?:ll&^ bM0 wmssliQ'i 

1-. ij ■ : f <■ -* • Vif^rxiif -^c-r/r . <.\, 

beaol&n&s. srfo nofecir bebsslout :*os 

•o no 

.... ^-sBOlxiD 

fii 9cf ocf en ; 

'i'!,ori,Lv,.';>j aA »i) ««i. If .-■ 


3-7 ; 

T 8A 


lose interest in the matter^, Moreover, due to the fact that all 
foreign trade is handled through Mr. Guarneri, Minister of Ex- 
changes and Currencies, who lias taken an active interest in the 
project, I am convinced that any ulterior delay will be harmfol 
to us. 

The Italian Government has manifested, through Mr, Guarneri, her 
desire to increase the trade Ydth the United States, The same d:— 
'partment — Exchrnges and Currencies - has given to the Colonial 
Ministry its consent for the acquisition of products such as 
houses, agricultural implements and machinery, etc,, from Sears, 

Mussolini himself gave his approval to the pro,1ect for Bast Africa . 

Moreover, the ♦Colonial Works Administration' has approved the 
types of buildings proposed by us, (We are only awaiting the reply 
from the various provincial Governments of the Italian Colonies 
liio are to specify their immediate requirements), 


a) For Sears products - to be purchased by the Colonial 
Department - no overprices will "be paid, 

b) For machinery oanufactured by other American firms- 
the Italian Government is ready and willing to give the permit of 
importation, (The manufacturing firms must pay Sears a commis- 

c) For raw products, a premium of 16% to 15% above the 
market prices will be paid oy the importers (Government or private 
companies authorized by the Department of Exchanges) » 

d) The minimum amount of business between Sears and Italy 
during a period of two years should be at least $1^,000,000 
($7#?00>000 in exports to Italy and an equivalent sum of acquisi- 
tions by Sears), If iears finds the proposals to be advantageous, 
the Italian Government is disposed to increase the business even 
to $25,000,000 for the same period. From calculations made. 
Sears will realize a profit of 20% to 25%, On the basis of your 
declarations, the profit realized would be to your satisfaction, 


Now, Sears should request the Italian Government to under- 
take to acquire, of the total amount of merchandise to be furnished: 

a) A minimum of 25% in Sears products; 

b) to assure the importation of at least 10% of American 
made machinery above the present quota of importation 
from the United States; 

c) to guarantee a payment of an average of 14% more than 
the market prices for the furnishing of raw products; 

d) Sears reserve the right, if there should be an increase 
in the cost of the Italian manufactured products, to ask 
a corresponding increase in the premium accorded to her 
in the furnishing of raw material; 

e) the guarantee, in case of hostilities in Europe, that 


-'4' rj"4 r-' -f ,^ n >:% *' 


lijlfioIoO add ^ci ir&Efiils'ii 

vo oi? ~ jn::;T:^i£q?»(I 

lo ^imisq &a^ ©via ^^ :^ALlh< ' 


•^jlBCn fc-ftij 8" 

r BssniEijcf ■ 

^.^■j . ■cJUOIi£..a£ASIS TAHI' SJABOgOgq ^r-SKga,^ 



the payment for merchandise in transit to Italy of the money 
deposited in Italy in Sears' narue shall be refunded in dollars 
by one of the Italian banks established in the United States; 

f) the right to Sears to break the contract ©f Exchange 
in case of hostilities in Europe 

g) to allow Sears to import from Italy (of the total 
amount involved) from 10% to 15% in wines and foodstuffs | from 
20% to 25% in seai-ffianiifactured products and the balance in 
manufactured products; 

h) the right to establish the amount of imperts when she 
has been assured that the prices of the Italian goods are favor- 
able. (Part of the semi-iTianufactured products, as you said, could 
be disposed of to a xhird party or partly used in the raanufacture 
of goods in the Sears establishments. " ines and foodstuffs could 
be sold to Hillman's or other firms engaged in tha scana business* 
Also a p£.rt of the products (such as clothing material, textile 
goods, woven tapestries, etc.) could be dibposed of to the 6000 or 
uore firms which sell Pears hundreds of millions in merchandise a 
year. Firms like Sears who previously acquired uillions in mer- 
chandise from Japan, Germany and Checko olovakia. 

On her part Sears should assure the Italian Government that 

the merchandTsrsnpiS^jhfeed and to be sold in \merica will constitute 
an increase in Italian exportations, that is, that she would re- 
place the merchandise previously purchased from the above men- 
tioned countries, 


a) Sears International could sell several more millions of 
dollars in merchandise and in this way improve her foreign trade, 
(while her imports i^ould not be increased), 

b) In dealing through the Ministry of Exchanges, Sears 
will be in a position to obtain facilitations which no other for- 
eign or i^merican concern will bR able to obtain. 

c) It will be possible - through this aedium of exchange 
and due to the fact that all permits for importations are issued 

by tha above mentioned department - to replace gradually the General 
Electric, Vvestinghouse, Frigidalre and other Am.^rican firms in the 
export to Italy and its Colonies, of household products and farm- 
ing machinery, 

d) The possibility of selling »For Sash Dollars* milliens 
in products, such as lumber, cotton, oil, metals, etc., to Italian 
companies who at present are acquiring these products in the United 
States from firms who are not in a position to help the Italian 
industries to place their manufactured products in the American 
market as Sears could, (Th-r^ exportation of Sears products, due to 
their quality and guarantee, will naturally increase with the 
development of Italian Oriental Africa and also when they have 
been tried), 


a) Returning to Rome (where now, following mgr activities 
and propaganda, the importance ©f Sears, Roebuck & Co, is well 
known and appreciated) I will see to it that the Ministry for 
Exchanges accepts and approves the counterproposals (contained la 
paragraphs a, b, e, d, e, f, g, h) made by Sears* 



KiO'll l^' 

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^■^n ; 


b) I would immediately op?n an of ice through which I 
could acquire data concerning the Italian industrial production, 
collect samples of products that Sears would require and their 
relative prices and forwarding same to "ears International* 

c) Contemporary to my work in Italy, Sears, in collabor- 
ation with the Chicago of-^ice of the I.ictorio Company, would send 
a questionnaire, enclosing illustrative material of the Italian 
Industrial products, to all th- buyers and managers of 5^0 stores 
and to the managers of the establishments of the Company, to the 
importers Tith ?feom Sears does business, business firms, etc., 

of products that Italy could furnish and to the American industrial- 
ists from whom Searn acquires merchandise such as clothing, under- 
garments, furniture, etc., asking what would interest them and 
approximately what ?:ould be the quantity of Italian products they 
could purchase through Sears, providing the prices are favorable. 
As soon as the samples, prices and information as abovs stated 
have been collected, it will be possible to isaredlately start 
selling, A display (in t^hiccgo, ?Tew York &rA otb^r cities) organ- 
ized by Sears with the co-operation of the 'Mctorio Coiipan5»-', 
and to which ivculd be invited representatives of firms who might 
be interested in the acquisition of Italian products, could bring 
very good results and accelerate our sales, 

d) As soon as the possibility of disposing, dir- ctly or 
through third parties, of the merchandise that Sears would buy in 
Italy, has been made. The Lic':orio Company (if delegated by Sears) 
would open a special office in Italy to handle the purchasesj study 
the development of the Italian Industry so as to keep the clients 
continuously informed; to handle the payments for merchandise sold 
In Italy; to handle the paynjents for mrrchandiss to be sent to 
Amerlcaj and to handle the shipping of same. The Lictori© Company 
could also assume the responsibility of organizing, in collaboration 
with Sears, an office in Chicago and Now York for the selling of 
the merchandise imported, 


In order to conclude the proposals, it is necessary that I 
return to Italy. This, not only because I am the author of the 
plan and therefore no one better than I could handle the jnattar 
more competently, but als© because, modesty set aside, I do not be- 
lieve ther^ is in the United states, another Italo-American who 
has, in Governmental circles (especially the two Ministers who 
are inter es ting themselves in the matter) as many influential 
acquaintances and connections as I have. 

The Llctorio Company lias already sustained expenses In 
connection with my previous trip amounting to more than $^-000, 
How the company does not find itself in a position to continue 
financing me, consequently, we are asking Sears International for 
an advance of a few thousand dollars. As collateral we are willing 
to deposit in your name $10,000 in shares of the Lictorio Company, 
Also for better guarantee the Lictorio Company is willing to in- 
crease ray Insurance (against all risks) from $^',000 to $15,000 and 
Sears would become beneficiary in proportion of the sum advanced* 


As I stated and demonstrated many times. Sears will make a 
very profitable deal by going into the project that I proposed and 
in which the Italian Government is very much Interested* More- 

T ■■ . ' _ -O 

r T • • • C» 

»ii:f 0+ ^Y' 

iS)llii sexy- /:. '^ " '■ ;j3 

(ETK- ■: . . . , - 

ffjp af'^.n^^cTX^ fcsitl«:t8JJB xh:>,^-3SA 5A 




J" ^ 

1 i:;i ^C' 


over, this is the right mome^it because Italy in trying hard t© 
increase her exports and to interest American firms in the 
development of East Africa, for v/hich hurtdreds of iiillions of 
dollars worth of machinery and materials will h?- required. 
Sears, hy acting quickly, will undoubtedly get the most advan- 
tageous and the highest share* A^l the scores are In ho r f avor. 

Awaiting a prcapt decision in regard, I remain. 

Respectfully yours, 
Luisi FariaHelTi « 

It is difficult to ftlean froa plaintiffs* amended complaint 
or from their briefs upon just what theory their claiia for damages 
herein is predicated. However, they seem to contend that by reason 
of defendants' rejection of Karianelli»s proposals and demands as 
contained in his written report to Sears of ^pril 24, 1939» the 
latter were guilty of an anticipatory breach of the contract betvmen 
the parties of *pril 26, 1938, 

Plaintiff Marianelli was the author of a "project or scheme 
to develop more business bet)seen Sears International, Inc,, and 
Italian Government agencies, private persons or corporations of 
Italy," Negotiations between Marianelli and defendants. Sears, 
Roebuck & Co, and Sears International, Inc. (hereinafter for con- 
venience sometimes referred to collectively as Sears) culjninated 
in the letter agreement of April a6, 1938, set forth in the com- 
plaint. Under the terms of this agreem'=^nt Marianelli agreed "t© 
go to It!?ly within 60 *^^ days after May 1" at hi.3 own expense "in 
order to contract and develop the business" in accordance with his 
plan as outlined to Sears, He was appointed by the latter as their 
temporary representative "for Italy, its colonies and possessions" 
for a period of six months for the sale of defendants* merchandise 
and the purchase of Italian products in accordance with the ex- 
change or part exchange plan proposed by hira. It was expressly 
provided in the contract that "any arrangements of the above nature 
which you [Marianelli] may make are subject to written confirma— 


^1 'Sfif . 


■-.riB01(J £ SJSJtJ iBV;- ft 

K9Siief3f) ^©1 ifEijpio rjl^rfd- v'souiif.t djsufw jftsi/;. 

b©;t/!ni:r' ''jjo (aiisr ..a^atlet 8»fl?l^w»p« Aanfinsv 


tion" by Sears, The contract then provided! "Sears International, 
Inc., further agrees that if, after the expiration of the above 
mentioned trial period of six "^^^ months of your appointment as j 
their temporary representative for Italy and the Italian Colonies 
and Possessions, you will have secured business acceptable to them 
of not less than $100,000, you will be appointed in the same capa- 
city for an additional trial period of six *^«* months in order to 
bring to a conclusion any business transactions which you may , 
have started. If, during this additional trial period of six *** j 
months, the sales of Sears International merchandise made by you 
and accepted by us exceed $250,000, you shall be appointed perma- 
nent representative of Sears International for Italy, its Colonies 
and Possessions. Following your appointment as permanent repre- 
sentative, after the expiration of the above mentioned trial periods 

of time, a six month's notice will be required by either you or 

or their 
Sears International, Inc. if it will be you£/desire to cancel the 

agreement in question," 

Marianelli went to Italy early in July, 1938, remained there 
about seven months and then returned to Chicago, It is not alleged 
in the complaint that he made any sales or purchases in defendants' 
behalf during the first six month period covered by the contract 
and plaintiffs are therefore precluded from making any claim for 
eonmissions on actual sales or purchases made for Sears during 
said period. It will be noted that the extension of Marianelli «s 
authority to act as Sears' temporary representative in Italy for 
the second six month period covered by the contract was, under the 
terms thereof, contingent upon his having "secured business accept- 
able to them of not less than $100,000 *** during the first trial 
period of six months," It is not alleged in the complaint that 
Marianelli was entitled to an extension of the contract for th« 

second six month period by reason of his compliance with the condi« 

BidcW oS sldfecfqsoofi eesnlexrcf feeinoee »vaf! IXtw irox ,cnolS8©eEO^ bus 

•~.oqx^o esfjBg sxl^ nl bsd-nloirqB scf JXlw ifcr^ ^000^ 001$ nsrid" ae»I ioa lo 

ot T'?b'a:o fli siltjtoff ^*** zla to toiieq IsiiS lESiOliibbB aB lol x*-to 

-^mneq bf'&aiocrfj^ «cf IXj»ria f^^ tOOO,0^!5$ fc©«sx» air Y<^ b«;tqs»5B fiaa 

, -J b'^titsmei ^BF^I ^x^ift til xlrtBe Tf.?.&l oi ^xtsw tll^a&l'^sM 

' £ ^nsfwelfcsfe ill: esaaris^ijq io aslsa vhjb efjjsin ©il Sisdi int&lqsssj^ ©riJ' ftl 

cfofii^fioo ^t x^ Jbtisvoo feol'iaq riifnoa xie iztiJ ar'i gatif/h lladecf 

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cfsiit cffllfilqraos <)tft n± feeg^XXs fon ai ^I ".eii-tcoK xie 'to .bol^©c 



1? I 

tions of said contract as to purchases or sales made by him in Sears' 
behalf during the first six month period, but he contends that the 
contract was extended for the second six month period by reason ©f 
the following alleged agreementt "That with the consent and permissior 
of the defendants, one of the stockholders and officials of The 
Lictorio, Xnc,, was an employee of defendants, and that when plain- 
tiffs reported to the Vice President of Sears International, Inc., 
Mr, Kearney (on or about March 6, 1939) » the successful termination 
of the plaintiff's negotiations, the aaid stockholder and official 
of the plaintiff corporation, then asked the said Kearney whether or 
not it was necessary to renew or proceed with the signing of a new 
agreement with The Lictorio, Inc., or the said Marianelli, or if he, 
the said Kearney, still considered effective the one signed between 
Sears and Marianelli, dated April 26, 1938; that the said Vice Presi- 
dent Kearney, of Sears Internatdtonal, Inc., stated that inasmuch as 
the sold Marianelli had succeeded in bringing to such a successful 
conclusion the negotiations for an amount which was so much above 
what they had asked of the said Marianelli, that the plaintiffs 
had the right to another six months' time for the purpose of bring- 
ing to a conclusion the negotiations with the Italian Government; 
that consequently it was not necessary to make out another contract," 

Even though the contract between the parties was extended 
to cover the second period of six months by the alleged oral agree- 
ment, still we fail to see from any allegation of the complaint 
wherein Marianelli performed any services for defendants pursuant 
to the terms of the agreement of April 26, 193d, which entitled 
him to remuneration. While plaintiffs' amended complaint Is 
replete with allegations that Marianelli successfully concluded 
negotiations with the Italian Government and Italian officials 
for the sale of defendants products to the Italian Goveriment or 
private interest In Italy and for the purchase by defendants ©f 

XiLTlaasooifa a ifows od^ sni^niricf jaX Jbs^©©o»xfa bBd lll&a&lisM. bXos exld- 
evocfi5 doi.m 08 3BW risjxlw :tisi/oaL3 130 10I saoJtctsX^ogt^xi 3xi:f xsolex/Xonoo 

-grii •■loa^twq ©iiji" lol e-mU *sdinom. xia naxfd'oafi p^ istgi-'^ ^^ bed 

|toeffi0isvoO jejsIXbvM ©ricf di]?a ErioXd-£i:;?o8^jEj; sriif noJteifXonoo k oi gnX 

'•,d-os53'«oo nsfi^tofls d^iiro »3fssi o^ x^s«««o©fi ;^«M! 8«w it xl^a^u^stBaoo i&d:i^ 

*-:-/e'i^,-^ Xfi'io fo^asIXa exfcT x"^ siitxiom xJta lo .{wXte®^ iasooaa 9i(;f le-voo o;f 
;?£U:cXqc!oo odt^ lo HoijiigelXs y^^b aboiI see o^ XX^l »'v XX We ^^iaem 

fe©X;M*«i» rfoXfiw ^&£?X ^dS XitqA "io iaoaQ^'r&& Bdi lo e«i«J ?<iW oi 

.!>eJbi;;Xo«oo TjXXitlaesooija iXXsnfiiiaM cf£rf;t anolcTiSjeXXis xf;JXw 9;t6Xq«i 

QX.aifj.ri^o usiXs^rX faf!B itneatiievoO a&llAil mtS dil\i aaoW^sWossa 

•i^o insimiovoO asXXsd'I ori;t o:t sc^oirfcoiq e;tflisJbn»l»fc lo aXee exUf lol 

-10 scfrL^fifisl&fj YCf eERffo'ixjq ?>iicf 10I bnfi ^l»:^l sil i&ei&iai &i&vliq 


Italian products for importation to the United States, there are 
no allegations of facts therein which show the result of said 
negotiations or which show that he effected even a single purchase 
or sale in Sears' behalf either during the first six month period 
©r the second six month period covered by the contract. We have 
searched the complaint in vain for any alleged facts which indicate 
that defendants ever agreed to pay Marianelli anything for his 
unsuccessful negotiations, Ihat they did agree to pay him was a 
commission on actual purchase and sales contracts which resulted 
frcaa his negotiations and which were accepted by them, and he 
agreed to go to Italy and carry on his negotiations "at his own 
expense o" 

It is alleged in paragraph 7 of plaintiffs' complaint "that 
shortly following the said letter of April 26, 1938, and on or 
about July 12, 1938, the said Lulgl Marianelli proceeded to Italy, 
in pursuance of the contract and plan adopted by the plaintiffs 
and defendants, and thereafter for approximately seven months 
pursued said plans in Italy with various officials of the Italian 
Government and Its colonial enterprises; that said efforts of 
said Marianelli resulted in plaintiffs securing from the Italian 
Government a memorandum of Italian products which the Italian 
Government was willing to sell to Sears, Roebuck & Co,, and a list 
of the products iriiich the Italian Government was willing to biay 
from Sears, Roebuck & Co., in addition to the purchase of pre- 
fabricated houses, in accordance with plans and designs furnished 
in books supplied by the defendants to Marianelli and by him de- 
livered to the officials of the Italian Government; that said 
Italian products were to be paid for by Sears, Roebuck & Co, frcm 
funds deposited in banks of the Kingdom of Italy to its account in 
payment for the products sold to the Italian Government, and par- 
ticularly to Its Italian Colonies in Italian East Africa, by 
Sears, Roebuck & Co," 

There Is no allegation in this paragraph or in any ot^r 



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svari st^ .^t'jE^^fneo ©iW x*^ fcsneTO© fcolisq fttaesa acie fcaoode exi* i© 

ad l?ns niaeiiJ -^d Jbed^qiBO©* «*i»w Jioirfw Mb anoi>tsl*og?'fl alrl moil 
fiiro sj rioli&liQ^Qti Qisi no x^^^s lass \Li&il ©4" o?| o^ beense 

all^r^aislq sfic^ X<f £>p^qo&a oalq f)G« ;J^06^;tsos «d^ lo ©siisxreijifq at 
g^j^xioia nevse y,Lo&&BLtzoiqq& lot ieij^'ia^*t^di hOB ^s.icmta9leb ba& 

iis1Xj3^I ms mi^l sfii^tiraea aliianislq fil b9JluB^i lIXesslrtsM fclaa 

xuslXiu^X ad;*- rioixiw ec^oirboiq aslXs^I lo csirbnis^OiEGa s tUMEiicevoO 

v^alX s Ms ^.oO :& jLoBdeofi ^e^s^a o;f XX&a oj- sciXIiw a«w ^HfiflMisvoO 

XSid oi 3i3lIXiw ajs«r ;riis>iafli3V0D aall&il edS MMv actswfcotq ari:f lo 

-' rq lo f?;2ario'ixr| ©4;^ Qi aot:^lbb& at ,,oO * livutSsoH ^efs«6 Boil 

^ilaiftiin: engleeb brm a^uaXq iJ^Jtw ©caaMooos ill ^8©ej5»ori fcs^solTcfsl 

--'i>lb BLbl x^ ba& iXIsitKl-sjsil ©J- e^ns&rtelob artt ^d l)»liqq»a «a£ood rrl 

ftiss ctsfl* jd-aofiifiisvoD asXlB-tl ©if^ lo ^lat1>^lto ©ii;t <s,t fc^tevlX 

fflotl .00 & ^t)U<isoH ^a-iB^a xcf tcQl Waq sd o;^ oiew ^iovbGiq amtlAfl 

xtt ijRWooos E;tjt o+ xlail 1o cobaniX exl:!- lo k^sl&^S at D^ilsoqdfc s&ixrl 

-^jsq ba& ^todaraievoD flaJUs^I oiW ocf Moc e:^o»6oiq s»iJ;t lot t«o«x*<l 

Xi! ^iiOiixA ^asa xtsJ:X«;tI ill tetauloO lusilB^tl eil ocT x-l-^jsXoslit 

" ,oO Sb iowcfsofi ^aruea 
!£SiI;f6 xr^G at iQ ilqB laa^aq aJtri-* at nol^ajeXXs on si ei:©^ 


paragraph of the complaint that the so-called "memorandum" abo^e 
referred to was ever delivered to the defendants or even sho^m to 
themo An examination of this "memorandum," which was attached to 
the complaint as Exiiibit 3, as heretofore shown, fails to disclose 
where it emanated frcaa or to vLom, if anyone, it was delivered 
or when. 

It is alleged in paragraph 8 of the complaint that upon 
Marianelli»s return to the United States from Italy he made verbal 
reports to Sears as to the result of his efforts; and that certain 
officials ©f Sears "expressed themselves as well pleased with the 
success of his endeavors and stated to the said Marianelli that 
they had no doubt the plans which had been accomplished by the 
said iSarianelli in Italy would be carried forward by the defend- 
ants herein, but that It would be advisable to submit same to one 
Donald Nelson, a Vice President of defendant. Sears, Roebuck & Co," 
It was further alleged in said paragraph that officials of Sears 
requested "plaintiffs to submit written reports and proposals with 
reference to the services which had been performed by the plain- 
tiffs in Italy, all of which the plaintiffs proceeded to do," 
Marianelli »s letter of April 24, 1939 was the only written report 
made by him to dafendants after his return from ^taly^ It will 
be considered later. 

Paragraph 11 of the complaint contains the following 

"That during the negotiations between the plaintiffs and 
the Italian Government, its officials and representatives, all 
of which was reported by the plaintiffs to the defendants. It was 
agreed that the amount of goods which would be interchanged er 
exchanged between the said Italian Government, its colonial 
possessions and industries, and the defendants, would be at least 

$15,000,000 during a two-year period| that upon said amount of 
money, the plaintiffs would be entitled to a commission of 7—1/2% 

e.oloslb o;f aXliil ^nworis 9T:oT:o:t9ieji ..... ^,. . xcfiiixa z& jal&lqaoo sdi 

»n9f!w 10 

XBC19V sftfiiE sri TcXficTI SKi'%1 aei£^a beitlnU ari:f -^ n-r';;tei 8* J:II»iiBJtlfi)f 
ni:£;t^©o ^jsrf^ Mfi la:^^ll9 aiii l:o ,J-Iijsei siIj ^... ..., saseS oi a;to;oq9i 

r^ff.i- rCJ-j-w ftsEssIq Xtsw Si; ssvleaiaeilt fcsasoaqxs** 8t:s68 lo alBlol.j.lo 

vl- ittt jLlI&nfilisM f>i:B8 &&i oi b9i;^iz ba& stovs^ebae sid la aasooif* 

&dS x^ fcsiieilcjffiODOB xxeocf 5M xioirfw aa&lq odi idisob on Jbad "^s^ 

r'JXff zl&zoqpiq Mb e^J^ipq©': ": « - .•^: '• ;,+ alllcfiilfiXq" bsJ-eeifp*! 

-itiBiq sitvf Ycf feefiinoticeq ixv^.'io .).<.,£. nr dm/ s£d1vi&e siiJ- oJ- eaaeiel^n 

", ' ' " 59eooiq e^lWflxfiXq &di iIoMw lo XXjs ^X-CbJ^I flX eHW 

j'.raq«-.j nojji^w x-tao adj- sew ^^X ,>S XXiqA lo is-t " '': XX snail aM 

Illtis' J I ,j-v;'i aioi? fluj;te'r alrf •: " ;iiBbii»lFD ;)w isxrf x^' 95«e 

l^.jTj:'.-7o II o? s-ri,: -JiJ:s.iaoo jni.^iXqaco srf:^ to II dq^is^iBTT 

iass ailX;ti:ilsIq ©dd- nsewosd afloiJ-ielc^oaaxi exU sfiXii.;r) ctsiiT" 

^esvlJ-siJasEsiqsi fcnje eXistioillo t;fjk ^;Jfls«ii©vo€ asllB:il sxl:t 

c:;.v :i ^atmj&nelsfc 9iii ot ^11tial^ilq MS x^ beiioqbi aew doldv Jo 

no £>esnsiioi9ini: ed Mjwow lioliiw afeooa lo imjoms axtf ;fa«fcf bee^B 

XfiXiioXoo ^ fiefitni^voO itfiiXjed^I f)iee ^^i xieswt^srf begnjciloxs 

^asaX ifi ©<f JbXiww ^acJ-nsfenslafc ad;t £ws ^aetn&zubtii ba& afitoleaeeeoq 

lo Stwotas blBB aoqsj Sad'^ {5oli'3q i&9x-^vo & -^aliub OOO^OOO^^Xfi 
^;?.\I«'^ lo aolsBtamoo a oi b^litine ecf fcXeow ellXJalaXq arid^ ^x^oo* 


by virtue of said letter of April 26, 1938, hereinbefore alleged," 
The allegations contained in paragraph 11, as well as numerous 
other similar allegations of the complaint as to "the success 
of his [Karlanelll » s ] endeavors," "plans which had been accom- 
plished," "successful termination of plaintiff's negotiations" 
and "successful conclusion of the negotiations," are not aver- 
ments of facts but of mere generalities and conclusions. In any 
event said allegations are completely refuted and contradicted by 
Marianelli's written report of April 24, 1939* which was submitted 
to defendants just one day less than a year after the execution of 
the contract of April 26, 1938. As was said in Bunker Hill Country 
Club ▼, McElhatton,. 282 111* App. 221, 236: "It Is well settled law 
In this State that where there is discrepancy or contradiction 
between allegations in a complaint and facts as shown in an exhibit 
attached to and made a part of the complaint^ the exhibit will con- 
trol; and that a motion to strike the complaint does not admit such 
allegations as are in conflict with facts disclosed by such exhibit, 
(Lyonsv. ^^^ North Mchlgan Ave. Bldg. Corp.j^ 277 HI. App, 93.)" 
Pleadings are to be construed strictly, except as to matter of 
form, and a motion to dismiss does not admit conclusions or infer- 
ences by the pleader. ( Klein v. Chicago Title & Trust Co.y 295 
Ill» App, 208; Leltzman v> Radio Bro adcasting Station^ 282 111. 
App. 203,) 

It will be noted from his written report, plaintiff s» 
Exhibit 5 attached to their complaint, that Marianelli's plan was 
still nebulous in April, 1939. In fact he did not seem to be any 
further ahead with said plan when he made this written report 
on April 24, I939 than he was when the parties entered Into the 
contract of April 26, 1938* 

The opening paragraph of the written report made by 
Marianelll to Sears was to the effect that Guarneri, Minister 
of Exchanges and Currencies of Italy, was interested and that 

eaeooira exl.:^ .; ^^aiisiQiEoa wir to sxto !&&-§& L1& tBltrntz tsdio 

~!^<:zo.i sisBd bad iioMv; na&lq'' »%£f£Ovael)n» [s'lIIsiiBltfiM] aid lo 

-'xevs Soa 9ifi '^anoi+ijlcfogen srl:^ lo aot&vlonoo Ixrlaas.'joire" JbjjA 
Xaa nl .aiiol£,j/Iciioo fats B*l:riIjrE«fi«§ s^sar lo imf 8:Jasl lo 8;tii9ffl 

lo aoUuo^se eiU i^n^, t^&x s xsafla ...... x&b ©no >tsxj(; a:taBj[>n9l*ll) o;t 

-a IIS.W Si n^ ;^£S ^ISS *qqA ,111 sgs i,.ao;^:t£iJI3fla , v dir,rr> 
:M£fi:/';^^ ru- al nwoda as e^oisl bas itanlqmoo & at aftoX^tssoIlB aiimSe6 
fItJifs ;tJja6fi :toii csofc ;tixi.3lq£ioc od^ e^x-ue od nol:ffMf « Ssdf has jloicf 

lo isi^BC: j 5^90X6 ,^ljcli,:e fc«5ir«id-Sfio 3 3cf o^f SIX) asfilbssli 

«asliii -10 2nol*/.^-.a<^o iXmbB ioa a>sob eaiiKEl& o:? nolJoai 5 J&cu ^B^^ol 

'*-^^ 2^^ 4 fflPrt;^fitfft Mlf Sfiftfe i fyyT^ oj^M_^v^Jbai£iJtft^ tSOS .(iqA »XXI 

<,£0S ,qqA 

Sisw a^q i^UleasiliBd JsiMS ^^«l«Xqgtco ^Is^rf^ ocf 6«if«Bl:rJS ^ tlcfJtrfxS 
-'— 3rf od flieea d«ii feX& ori :^eal cI ,Oc€X ,iiiqA a± eucXi/tf^fl Xliia 
i'loqet c&JJi-wT sirU^ cBais oil aenv xiaXq i^i^e x( fcasdc ^f^dSia'^ 
©rf* o^tixX I)©i»;t£i9 E©X^naq edi norlw eaw arf asili ^f£ ^^^ Xiiq. 

.6£^X ^^S Xl^qA to Sos^aot 

\-a 9:..:ia: 7'ioqQi m^&t-xw adcT lo xfqfiTt§srt«q jiaJtneqo PiPT 


the Italian Government expressed its desire to Increase trade with 
the United States and consented t© the acquisition of products such 
as houses, agricultural implements and machinery from Sears. 

The remainder of the report is divided under several head'-' 
ings* The first heading is: 

" The Pyoposals aM Conditions of the Italian Government .. " 
These are that (a) no overpriceSwill be paid for Sears* products 
purchased by the Colonial department; (b) the Italian Government 
is ready and willing to give the permit for importation of machinery 
maniifactured by other American firms, such manufacturing firms to 
pay Sears a commission; (c) for raw products, a premium of 10% t© 
15% above the market price will be paid by the importers; (d) the 
minimum amount of business between Sears and Italy for two years 
should be at least $15,000,000 and possibly $2^,000,000, upon which 
from calculations made by Marianelli Sears would realize a profit 
of 20% to 25%. 

It will be noted that under this heading no mention is made 
of a single item which the Italian Government agreed t© buy from or 
sell to Sears and that not a single price is quoted. It is signifi- 
cant that under this heading no mention is made of the "memorandum," 
heretofore referred to, which the complaint alleged was the memo- 
randum of the Italian Government, 

The next heading in the report is: 

" The counter-proposals that Sears should make and the 
Guarantees that should be requested ." 

Under this heading appear eight suggestions of Marianelli to 
Sears as to what proposals the latter should make and what guarantees 
it should request. All of these suggestions as to counter proposals 
and guarantees are nothing more than generalities and this part ©f the 
report concludes with the advice that "Sears should assure the Italian 
Government that the merchandise purchsed and to be sold to America 

. : : . ; iais^-xoq«Jt ^^ Xcl fit^q ec ^tBK «$* t>vo4» ^RX 

.^Bet ©w;^ iisl tXBC^X fee* aT:«»e>e«w:>«^ aassXeM lo ^furoniB mstitnlm 

.loiriw noq., ,0OG,00O,?S$ xXdleaoq toi. 000,000 ,^X$;filB«X iB ^ . b| yo4 8 

-X.; a- fioi:lfTe^ on ^tiibB^J^ ' '^^^"^ *^ ^^^ ^^ 

«JtlixJ2i:^: . .9ioup ai soiiq sXsflXe b JOi^ 'xssS eS XXsa 

alBBaqo-rq i8;^m«50 oi «b anoXcTcGssi/e ea^^i^ "^o XXA ..ts«0P^^ ^i^oda :fX 
..,t .<rrrp:-, MTfjof-a ?^ta^8" (tsrfit soXvIj^ orfct ff^^lw sshrflonoo Ji«q»i 

•4 >>■, 


will constitute an increase in Italian exportations, that is that 
she would replace the merchandise previously purchased** froK 
other countries. 

The next heading of the report is: 
" The advantages that Sear s wo uld derive . " 

Under this heading follow several fantastic prophecies. 

The next heading of the report iss 

"How the project could he effected*" 

Under this heading Marianelli proposed that he would return 
to Rome and would see to it that the Ministry for Exchanges of 
Italy would accept and approve the counter proposals which earlier 
in the report he suggested be made by Sears to the Italian Govern- 
ment j that he would open an office in Italy to acquire data co3>» 
cerning Italian industrial production; and that he would collect 
samples cf products that Sears would require and ascertain the 
prices of same. 

In other words almost a year after the letter agreement 
of April 26, 1938 Marianelli proposed in more elaborate detail 
that he would do the very things which he should have done at 
the outset. The parties had not advanced from the point whence 
they started. In the agreement of April 26, 1938, it was expressly 
stated that ICarianelli should obtain samples and prices of merchan-» 
dise in Italy, A year later, after he had spent seven months in 
Italy and had returned to the United States, he proposed that he 
again Journey to Rcaae and set up offices for the purpose of ob- 
taining s&mplGS and prices of mercliandlse in which defendants 
might be interested. The amended complaint suggests no reason or 
excuse for Marianelli 's failure to do these very things durtug 
the preceding year. 

The next heading of the report iss 

" The requirements of the Lictorio Company from Sears, ^ 
Under this heading llarianelli states that the Lictorio 


,r'?lo-^f'Hoic- -■-'-;■•:>•'•' ■^'- Ibisv&z srolio* §111:1)3©^ ald;^ «-r.^r,r; 

-noo sd-ef) s-iJtj/po* od- xIgc^I aI soiilo iw fleqo Mifo?^ sxi ^arid' j;tfl©ffl 

d-oolloo Mxjov; exi ;Jjsj(lJ iwiii jnoJtionboiq iMltitubal n&lL<iil gnlnioo 

sriJ- aisd-isoas fciiB ^ilsjp^i bSjjoxr ziqbB iodi z^oisboiq to aelqmjse 

,&siiie. lo asi'Xiq 

X.t&ii.b fii&iQ^si& eiom a.c Leeoqoiq xIIoajilisM 8£^I ^^S Iliq^ lo 

&B snofi eT7;,ii I-iXx/oria sxi doM':i aanxxW ajiov sfW ob blssov esi ta&f 

Qoasilw j^aioq etJ moil ftssiiBvbs ^©n osd gsliijeq a^T ♦^»8ii;o «<£j- 

\:Iae9iqx9 sbw cti ^8£^I ^^S Ii:iqii lo ■^neas-L^n ^di al ^i^Biiais x^'^ 

"iiJ34oiofii to esoiiq £iajs asIqisiBS nXiJido blisotit: illeafiiijBM d^Bjiii boiuis 

nl sjiiaots. asvee d^neqa b&d cxl I's^la ^'leJ-jsI ise'^ A ,\lBi^ al estb 

—do lo eaoqii/q erii- ^ol asclllo qi; d"©B f-;n>i swoH od AC-nxuot alAS^ 

s;^xi«|ja9lft6 xioxiiw njfc saibnisrioism lo a«'ol'xq fcfiis aDlqms* sjGinlfict 

10 noas9'i on E^aaggija j^ciBlqaioo belinajas ©ctT .f5»;f89*if4fll ea .^lisla 

• iJ8«x lfllb©0'>iq eiivf 
js2 oioqei eri^t lo 8fl±£>*iexl J-xfcii srlT 

"leases gpi^ ynacrriOO oliocr&.tl erf^t lo :. 'LMI" 

Cempany had incurred expenses of more than $5,000 in connection 
Tflth his previous trip to Italy and was not in a position to 
continue financing him. It is then stated: "Consequently we 
are asking Sears International for an advance of a few thousand 

Under the heading: 

" Conclusion ** 

Marianelli states that Sears would make a very profitable 
deal "by going into the project that I proposed and in which the 
Italian Government is very much interested;" that "this is the 
right moment because Italy is trying hard to increase her exports 
and to interest American firms in the development of East Africa 
for which hundreds of millions of dollars worth of machinery and 
materials would be required," The last sentence of the written 
report reads: "Awaiting a prompt decision in regard, I remain. 
Respectfully yours, Lulgi Marianelli (Signed)," 

On May 11, 1939 Artamonoff, President of Sears Internation- 
al, wrote Marianelli advising him that the executires of Sears, 
Roebuck & Co, had decided against consideration of his written 

Marianelli »s written report of April 24, 1939> clearly 
shows that the Italian Government had never taken action of any 
kind, official or otherwise, in connection with the subject matter 
of the contract of April 26, 1938, The report is a self serving 
document and is simply a letter from Marianelli to Sears, which 
states at most that the Italian Government had manifested a desire 
to increase trade with the United States. The report considered 
in its entirety indicates nothing more than that Marianelli had 
had some conversations with persons he said were connected with 
the Italian Government, It definitely shows that plaintiffs 
never obtained a commitment of any kind. It contains no definite 
proposal or offer by the Italian Government or any one else in 


o* xioWiaoq & njt *o« a«wr £>«« tcX^^.X €>:f qi^rf ajcroiys^q aid iid-Jhr 
3w x^oasxfpeEiioD" %b9iBiB ns^ild- al il .mid gnioisrjxil ©laiiiiioo 

';;:-;i^jTOrt:J ijsl: - *■'" -.-^-r^ --. .-.•^ r. „„......., t„r -j^^^gg j^flWes sib 

psU si: &i[W ' ' " jfcsj-ae'i^jfiiJt dmsm ti®'^ st d-n^ionsvoU nitis?! 

"cJ^lW sii^ 'to siMSsiiiet , "?ijtifp»'3; ©cf Muow p.L&ti»Sjm 

^Liliicrs^ I ^fctJ0§e'i ill ncialoab jqfiioiq s gnlJisssrA" lafc^ssi iioq^^i 
♦*,(i)Sii3ia) lIIenislifiM Iglxfil ^eruso^ Xlii^:to&qeofI 
-noi:;^sn*i©^iiI a^s©8 lo ia»£>l8 «%•£<! ^llo&omi&f'ifi. ^£^1 ^11 -^^S iiO 

sJ-cl'W all! "5:0 noid-eiefelguoo ^ealags h^fctneh b&d ,aO j& iloxrdsoff 

TCliasIo ^^£^X ^-^S IlnqA lo ^-nioq®^ li©^ti:«rar a » JtXX&flisl^jiaS! 

'.oii&m iosldim ©rict ff;flsr aol^setftnos pil ^^'SBtviedio io lut'&l'^lo ^Jbrr.^ 

SUlv^ea IXfe « si +nn<|<^7 eilT *8£t?X t^S XlrtqA to ^sjsi^florj ed^f lo 

rf&lil'S' ^srr«eS oS tZlBatliM afoil i«i-#sX jb xXqrla r i bnj3 :^fl8rJ;0ob 

).le©& B bBt^oliaam bed :tfi«flfflrasvoC nJ5iX-s:M ««1.7 ^adi ;teoa! .ts 25:^s;j2 

Bad iXX©nBl7.«M isili narf^' tiom gnlild-on z^Saolhat t;J'9md'jas B^tl al 
ifcflw beioonaoo 9i»w fcica eri enoeieq xi^flw wioliJ-sa^svaoc eusoe bad 

f=>tinl1t95 ©£1 aixifiv^-ffoo il ,&ciJbf \nfi. lo :tft©«uJlaaBoo & b%ai»J<So T^van 


Italy to buy or sell any specific commodities cr saerchandise at 
any specific prices. In essence Mariane Ill's report was a con- 
fession that he had been unable in the tiae allotted to him, not 
only to sake a sale of merchandiss on behalf of Sears, but even 
to obtain an offer having any degree of certainty or authenticity* 
At best said report vras a new proposal to Seers which defendants 
were fully justified in rejecting, Islarianelli himself knew that 
this w«.s so because in the very last sentence of his report he 
stated that he awaited "a prompt decision," If defendants were 
already obligated to plaintiffs under the contract of pril 26, 
1938, as it is now claimed^ why did laarianelll • s request "a 
prompt decision" as to the proposals contained in his ^f^itten 
report of spril 24, 1939? ?e think that said request shows c@»» 
cluslvely that his proposals contemplated a new and independent 
contract with defendants and that he fully appreciated that they 
were no longer bound under the contract of April 26, 1938 and 
tiiat they had incurred no liability thereunder. 

Plaintiffs' contention that since the contract between the 
parties of April 26, 1938 was executory and because defendants 
vtere guilty of an anticipatory breach thereof by reason of their 
rejection ©f Marianelli's proposals contained in his written 
report of April 24, 1939 they [plaintiffs] are entitled to the 
damages claimed, is absolutely without merit. As we have already 
shown plaintiffs' complaint fails to allege any facts which con* 

stltulte an anticipatory breach of the contract of kpril 26, 1938 

on the part of defendants or that/Sears breached said contract in 

any respect. There is no allegation in the complaint that 
tarianelli ever submitted to Sears even one concrete proposal 
from the Italian Government or its officials or from anybody 
else in Italy to purchase from or to sell to defendants any de- 
finite product in any definite amount at any definite price » 
Since the amended complaint does not state a cause of 

r;o-;^;i;a3l6l) ri&iiflf/ artseS o^ lijaoqo^q w»ii ft saw d'^oqei bi;.qa iaotf jA 

s* i'ssepsi a^lIXeflBliBM feJti: ^ , 

ScGqefeifsl fefiB wen is MiieXqasctnoo al/jsoqortq ejrri J- fact x^^'^i^^^^ 

'a& 6£?X ^^S XiiqA 1© (^osTsl^ftoo sficT ipfcci? bmrod isjj^aoX on e^sw 
^.isfcaar*'!©!^^- X-'^-^I-^cfa-tl on b&r'motil bed X'^^ ^^-^ 

tisxid- lo xicesei t^cI loenid^ dossier Tj^otsqloWfls as lo x^IJtiEra enaw 
fl9.7;Jiiw zJtii a.i bsats^noo aXssoqois^ 3 » iXXsaslisli 1© aoi^Joatsi 

„.bsdrtXB ©TTs^; , .led-j/Xoao'-j ax ^JbeiaisXs s^gfiamfi 

««oo dolilw e;^:. -Xl«1 JxtlsXqxaoo UlttictoifiXq a^otlB 

. ,1 i^^fi j^^A. Jo ioBtittoo f!ni:^ \& iiofiifticf x^oStq^toiina as «tt?d'Xd"e 


Xjsao^o*:' ano aevp «T6»8 od^ J&s^J^ladji/e ief& til^asliAd 

XfiOf^ti aionl 10 aXBloXT- .laaa^sToO HBXXsd'I silt noil 

-»5 -^^ rid-ftetjn«i*lef» ©^ XXae oi "lo cortl ©EAcfoiujq oi '%la;^l aX eeXe 


action, the order of the Superior court, sustaining defendants' 

motion to strike said complaint and ordering the suit diSEdssed, 

was properly entered, 


Friend and Seanlan, J J., concur. 









TM's appeal by defendant, Charles L, Schwerin, sfeeks tof 

/ I 

rey^rse a judgment for $2,^00 entered against him in^the Municipal 

court in an action brought by plaintiff, James T, Shealy, which 

was tried by the court without a Jury, The original statement 

of claim was filed by plaintiff December 9, 1938, An amended 

statement of claim was filed kay 8, 1940 and on the same date 

an alias suiamons was issued returnable M&j 24, 1940, The written 

appearance of defendant and his attorney was filed May 20, 1940, 

On May 24, 1940 an order was entered granting defendant an exten- 

tion of ten days for filing his statement of defense. On June 3* 

1940 defendant filed his statement of defense and a written demand 

for a Jury trial. On June 20, I940 an order was entered sustaining 

plaintiff's motion to strike defendant's demand for a jury trial 

from the files. On November 4, 1940 plaintiff filed his second 

amended statement of claim in answer to which defendant filed 

his statement of defense and December I6, I940 plaintiff filed 

a reply to said defense. As heretofore shown the cause was tried 

by the court without a jury, the issues were found in favor of 

plaintiff and judgment rendered against defendant for $2,500 » 

Under plaintiff's original statement of claim he sought to 

recover $1,000 and interest thereon on defendant's promise to pay 

same. Plaintiff's first amended statement of claim sought recovery 

of the $1,000 referred to in the original statement of claim and 

in addition thereto an item of $487,15 which he claimed to be due 

him by reason of the assignment to him by Champlin-Shealy Printing 

Company of its claim against defendant in said amount. 

, ; ,J 8SJHAH0 

:. Hoini<!o SHX (mm'mm M,n.~ . ... 

itoJbSw ,Tj:is®fi3 .V gerafiX. ,, _ ... , 'zd jrisi/oicJ riold^ofi aa al u 11/00 

sd"eb »mce saiJ* xseo Ms 0^?i ^ .,- - &eXil esw jKisIo lo ia^mei^ia 

-4 J It*? (^iifi , J^^'i ,>:i \si^^ &ld&a'W'jB-t £)©Xfsai a>=nRr efioscoz/s sails job 

.04^1^1 ^OS xsii bBltt asw •NC£?iir£o;Sd-6 alii l^rtfi jmibaBlob lo Qoa&iseqqB 

^£ essal isC .ssrselsJb lo in&meiBSn jtM ^^1111 10I s^iife ns:?. lo aoii 
■r. MQb a^J^it'm a btw ©gjtialj^fc lo ja«fi[©J-»cJ-2 sld belt! ^itBtosldi!) O^^I 

•iG^si/a '•'••■ '■-'- '"■■'■ '-'--; -'" -^-.v ^''-'^ -f'r''' •-'"^ .I/^i^cf x^ct £ 10I 

fenoofia sin bt-Ill 'ilLtnlBlq Q^^l ^^ lecSiUQv-'' r .aelil eii$ aoil 
belli juabaBlQb fir:-'' -^ ' isweiLG nl ailsXo i- .ii^zvt&iB fesMsai* 

. lu ai-v. f ax/so silt rtv?oile -■ •> • - ■ . anslei) f>i££ oj- yXq^i £ 

Tjeq o;? ©alJKoiq a' J-jciiirx :'.:■- b no riooi-jra jae'iod-ni bia^ OC0^li lovoyf.-i 

fcna Kl .; ' -lOiioj^cC Xaalsiio wIS ni o;t "&e«i:c0l«'T: 000,1': &jfL' 'io 

eiff) ' -^n dotil ".'■"'"' -i "io iaec?! sits. octsiacxJ* aoWlrti; nl 

;iJ-jai-x'i xlk.&di^^-^k^lqauaAO \ii telii oi jaeaoalaes &£U Ho nou&9n \;d mlrl 

^-JPivoma fcJt*".a xii ;fnBfcn©1)=-i) ;^aitlssa mJialo s^l lo 'itn'sqao:^ 

Plaintiff's second amended statement of claim included his 
claim for $487,15 under the aforementioned assignment and averred 
as to the other item for which he sought recovery: 

"1-a, On July 9, 1934, at Chicago, Illinois, and at defend- 
ant's special instance and request, plaintiff turned over and de- 
livered to defendant the sum of $1,000, and in consideration there- 
of, the defendant then and there made the following agreement oop 
proiaise in writing with reference thereto, which writing was thea 
and there delivered to the plaintiff, is still in full force and 
effect and is, in words and figures, as follows, to-wit: 

»Mr, James T, Shealy July 9, 1934- 

100 N, LaSalle St, 
Chicago, lUo 

Dear Mr« Shealys 

In transmitting the enclosed receipt to you, this is to 
confirm the statement I made to you - that if this $1,000 is 
not finally repaid to you, I will see to it, after June 1, 1935> 
that any deficiency in your original subscription is made up to 

Very truly yours, 
(Signed) Charles L, Schwerin* 

"The receipt and subscription above referred to are, in words 

and figures, as follows, to— wit: 

•Chicago, Illinois, 7-9, 1934- 

RECEIVED OF JAMES T. SHCALY, Chicago, Illinois, the sua of 

ONE THOUSAflD DOLLARS -($1,000,00) 

accepted upon the following conditions! 

This receipt to be exchanged for the Note of Kremm, Seeley aai 
Schwerin, Trustees, in the amount of $1,500, under a Trust in 
which they will hold an equal amount of Bullion Notes or Ore 
Warrants of the CENTRAL CITY GOLD MINES CO,- (now being incor- 
porated), which Note will be due June 1, 19 j5, and which Note 
will further call for the payment of $50»00 on October 1, 1934, 
and $50,00 weekly thereafter until fully paidj and the following 
certification of ICremm, Seeley and Schwerin of a 1% interest, in 
perpetuity, in the profits paid to them or for their account by 
the Central City Gold mines Co., they, in turn, owning all the 
stock of the Central City Gold Mines Co,, 

(Signed) Geo. P, Kremm 
(oigned) L, M, Seeley 
(Signed) Chas. L, Schwerln» 

"b. Up to and including the first day of June, 1935* and 

up to and including the present time, the sum of $1,000 referred to 

':,,•.<■:^i:^.y^ tiff, f.-tpr^nj^lei..-, .- .:^. L'^a&B.eio'^p ■-.'; ••i-f-i-n "^r.^^^ lol mlBlo 
i 'iCtroo^f. . ;*-:;n" -f _ ^dSo ^di oi ss 

.^a *XX^8j3i.I ,ii 001 
,XXI ^ogeolnO 

t'%lanA"d tin. ^sqQ 

IX aold-qiinatfju'e Xj 


oJ- qu Qb&m. ax aoXd-q fin a tfju'e Xjsnlglno iimx itl Ysn'^iioxlef) ijrca cfsfW 


T -- 

.■:»£swn08 ,il 8SX 

.^ac;;' -.o'-^n^x- 

4!?aa oij- fee";--'' 

'■ ■■ V-Oi^B ax>t^qi-':j:-^i^:c -u.. 

J .'Wi:-:j--i 


, ..^^^^ ^ewoXXo'^ -■ 




^i;| ) 



jttl ^y • ■; 'io ii. , 

^,oO aexiXM f^X^ . 

-3- 1. 

in paragraph 1-a hereof or any part thereof has not been repaid 

to plaintiff, but there has been a total deficiency in the sub- 
scription above referred to, and though plaintiff has often de- 
manded of the defendant that he comply with his agreement and 
promise as aforesaid and pay to plaintiff the sums of money due 
plaintiff thereunder, as yet defendant has refused and refuses 
to do so," 

Defendant contends (1) that "the trial court erred in striking; 
from the files defendant's demand for a Jury triali" and (2) that 
"the trial court erred in entering Judgment for the plaintiff in 
the sum of $2,p00 because that sum was in excess of the specific 
amounts claimed by the plaintiff's pleadings," No report of 
proceedings is before us, defendant's contentions being predicated 
solely on the common law record. 

There is no merit in defendant's first contention, Ihen de- 
fendant's written appearance was filed herein, "ule I67 of the 
Municipal court of Chicago then in force provided as follows: 
"Issues of fact in any action which either party is entitled to 
have tried by jury shall be tried without a Jury unless a demand 
in writing of a trial by Jury is filed by the plaintiff or by the 
defendant. Such demand, if it be for the trial of the issues 
which may be raised upon the plaintiff's statement of claim, if 
it be a demand of the plaintiff, must be filed by him at the time 
he commences his action, or if it be a demand o:^ the defendant^ 
i t must be filed by him at the time he enters his appe^ y^yygff, *«*n 
(Italics ours.) 

The foregoing italicized portion of the rule is clear and 
unauiblguous and plainly states that if defendant desires a Jury 
trial he must file a demand for same at the time he enters his 
appearance. There were no unusual or extraordinary circumstances 

in this case that would Justify a departure from the provision of 
the rule requiring the defendant to file his Jury demand at the 


.ijjxiiia nl bsrrs© :r«K?i9, IJS-t'i^ ^'^^^ ^^^ <X) 8ljp©cfnc& *flsJ>a©lsC; 
ipidi (S) finis <^|l£^l^c^ ^itft «,,^o'5i boMssLQb z^ia^taBl^t asin ftsfct «oil 
,fl lll^tnlfilci oiW lol ctasds^ift snlis^fn© nl I>®ti<? ^-iito-j Xsli;^ sxW" 

^1)10061 wbI aomxio edi no -^Xsloa 
;\t,;?,tni,c iaiil entnafcnelsfc nl ^Itski on si ©loxil 

•avrollol aa tobivd^q 90io^ rU ftSxW ogsojWC lo i^moo isqlohuM 

c. £»8X:M^flo al xii&q. i&dUB iloixiw noWs^ Igofi al ii>»l lo a»i;gBl" 

IjmsDiofi B esSiXiUi YiJ?t « *iK>^i»^ P^^-^l &d U&ds xivi X^ belli svari 

^-i.'--: "li^ 10 X»i^^ ^•x'.t 'lol 9tf ;rX i± ,i««B8b d©«e .cMuifJCfleb 
; ^ ' io ;tn9iBs;tBJi. _ ' v^i^tttftXli »d^ «oqji boelsi 9«f ^^im lidldw 

fees l.i^^L. ..... -^. . :..w :::^;:.i£il3^I ^nJtos»^cl arff 

time he entered his appearance. It cannot he said that defendant 
was unlawfully deprived of a jury trial v/hen his failure to receive 
such a trial was due entirely to his own negligence in not demand- 
ing same at the time prescribed by the aforesaid rule of the 
Municipal court. 

As to defendant's second contention we think that the trial 
court erred in entering Judgment for $2,500» which amount was in 
\\ excess of the specific amounts plus interest which plaintiff claimed 
in his second amended statement of claim. An examination of said 
pleading demonstrates conclusively that it was predicated on two 
definite specific items with interest thereon respectively. First 
was the item of $487,15 due plaintiff from defendant under the 
assignment from the Champlin-Shealy Printing Company, The second 
item was $1,000 claimed to be due from defendant under his promise 
to pay same contained in his letter of July 9, 19 34-, This letter 
is set forth in plaintiff's second amended statement of claim. The 
right to recover this $1,000 is based solely on the promise made by 
defendant in said letter. Plaintiff made no claim for recovery 
except as to the two items of $487.15 sood $1,000 with interest 
on said amounts respectively. Plaintiff never claimed that de- 
fendant promised to pay him more than $1,000, That was his claim 
in the original statement of claim. That was his claim in his 
first amended statement of claim and that was his claim in the 
second amended statement of claim. Thus allowing plaintiff all 
that he claimed, $487.15 due under the assignment plus interest 
thereon and $1,000 due by reason of def -ndant's written promise 
to pay same plus interest on said amount, the Judgment should have 
been for an amount considerably less than $2,500, 

Plaintiff asserts that he had the right to recover and haye 
included in his judgment the amount of $1,500 which was mentioned 
in the "Receipt and Subscription" set forth in the second amended 
statement of claim. It is true that this "Receipt and Subscrip- 

.; iw iniXiSB dotds.' ^'Xc^'"' ■^" tnsiasfciiit jslisJ-n© ai f^';.if> jiroo 

- " ^-^inlixi^z^': .:,':.'"■ * " "-::■-' ' ' - .: o-^3 air' .' 

ov'j no Dsjsolf>®iq 2:3w cri; jchj vi.'rv.t:5;:/i; -yLSuiui^Bb snJtfcp.^Ic 

htw Jn.- • ' - ' UXc »JirJb ?I,^8-^0 to mSl 9ri;t aaw 

.;qo-3 cdX .x^feqiio.. iiiiJi:J;'x: •'iI,3-3ilci«.a:HqfliBf{0 sfW noil iaBmit^lezii 
rtRDig sJtil ti!S)f>fU? ;i-nB5a©t&X> laoiTt »»& scf o;f becrlalo 000 ^I^; Bern aoil 

~3fi j-iul^ l)9Ki; .^levicf of»qE9*i ecfmooffia bXac no 

dial© eM 8£.v. . 0^1^ audi sioxa arj 

alxl a ■ . .-I-:, lo J-a«idfc';t«4,?ii iijdOi^i'i 

. ' ■■ : faosisiBis fcfJbn«>ffltfi teooee 

iQ&%^itil SiSiXii Jiis/snslfe8s ©rid- f-batj ©uD I;i,'^3*$ ,59!a±«Io r^rf tsuii 

©ElKoiq uf'ictiiiir a^d-nabfl^ilsfc >o iiosBSi x^ ^^^^ 000^1$ btza no^i&d^ 

evcri blvodQ :}nsis^bvl »xli ^+rj/oaiB bi&s ao SB&ioinl esslq sane x^q oct 

*00^^S? xlsric^.s8?I xXQ^'J:'^fci««oo c'lmoiaa hjs lol nescf 

beao lia^m &b^ iSoAriw OO^^X^ lo ^mrcstz ©iW cJ'ns^fcirt elxl nl t©i>iilaitl 
hBbnoeiB Jbfl6«ee eitf ni dtio'' toJri^ql-i&ectoG Sxxfi ctqieftftIP' mS;^ at 

^q-iiofio'uS 6f££i ;JqJ:£o©fl" «M;J fBAi bu^& t ^^ lo vta©fli?J^,8;Ja 

tion" was contained in the second, amended statement of claim but 
there i»as not a single allegation in said statement of claim that 
even referred to the "Receipt and Subscription" and there certain- 
ly iras no allegation therein that it was relied upon for the 
recovery of $1,500 or any other amount. All the allegations of 
the second amended statement of claim pertaining to defendant's 
obligation to repay money advanced by plaintiff relied on de- 
fendant's promise contained in his letter of July 9* 1934- to pay 
plaintiff the specific amount of $1,000, 

We are mindful of the rule that as a matter of pleading an 
amended pleading entirely supersedes a previous pleading if said 
amended pleading is complete in itself and does not refer to or 
adopt any portion of the original pleading or prior amended 
pleading of the party. It does not follow, however, that a party 
is not bound by his sworn admissions made in prior pleadings. Mot 
only is plaintiff limited in his recovery to the specific amounts 
claimed in his second amended statement of claim but he is also 
bound by his sworn admission in his original and first amended 
statements of claim that defendant was indebted to him only to 
the extent of $1,000 on his written promise to pay aaid amount. 
The only exception with which we are familiar to the rule that a 
party is bound by his sworn admissions in prior pleadings is where 
It appears frcai a subsequent pleading that such admissions were 
made through mistake or inadvertence. 

As has been seen plaintiff sought to recover solely on the 
two specific items of $1,000 and $487,15 and interest on said 
amounts respectively. That was all he was entitled to recover. 
There is no question as to the $487,15 Item but the court erred 
in allowing him $1,500 with interest thereon instead of $1,000 
with interest thereon. 

The judgment of the Municipal court of Chicago is reversed 
and the cause remanded with directions to enter Judgment in favor 

■ i-G :^zl ' ' offlisJ-i},Ja b^/imcM^i i-iiooee '•'XicJ- nt bealQ^taoo ass "noxj 

e'd-fiflljnetafe o;J gutxiiJd'tiaq »±J3X» to &aBaBi&:SrB b&b£iea& bnco*38 ©/1;J 

.000, if. lo fcjjows oi'ilofi^s 9flt ItMol&Xq 
n& 8B±,&asXr dxl^ ©Xjn erf^ lo itftSmtai €ric dW 

iBS 11. ^alby.,t'lq fcyutoivfe^ ^i asb^eifeqii^a ^Xs^;jit* §rtl;fe»©Iq fe©l»«t>iim 
'lo oi ':i©ls«j &€i£t esob SUis tXetatf'i: al ©;^®I^fffos> ef s«ifes»Xq &«Jbn»£Qi 

. ■c.-$alhBi)lq tojfciq. fil ©fjfiia ftftoiaetttJbii iriows eiil ijc} btmod jon ei 

ja^-xiisofiiii oilioaqs ©do' oj Tj^srooei s.tri nx beJij^XI lli^aiaXq ai xJ"-^^ 

03X£. si ©il d-ijcf MisXa lo ^atm^Si^Si t'*knsmi& booms & eil bMtiX&lo 

s'leifsr si 880l5«&Xq uoliq ni axiojbaeliEf)J8 aiowa eiri td JEuuracf el X'^iBq 
9'i9w sKoieglsubij dci/g cfsfl;^' -^tbs^lq ta&ispBB^^'s s moil ai^eqqs cfl 

fcljsg XK-) ;r«»T:e^nl fec3^i,^8-f-$ fccwt 000, X$ lo eM^J-i *>J:ll©«>qf! ow;t 

,isf06s*2 od baX^lwH® 8bw ed IXfi eaw d-sriT ^'^fXevlcJ-oeqa^n s&asjvm» 

binsQ iivoo Qdi Jad moii. ^I,V6^ Bdi oiJ sb noiJ-Bftirp on el ei^Mfl' 

eiOO,X;is 'io toetenl jaoa^exi^ ;ta«)^»;tni riJ-iv 00^, X$ mtid s«lwoXX.3 nl 

,jao©^eirf:f *esf«t©^iil d#,tw 
bogiM's^ al o^oDlilO lo S'Uioss l&qloimtU ^d^ lo Jneifia&ift ^t 

of plaintiff and against defendant in an amount which will 

include the item of $487.15 with statutory interest thereon 

from November 10, 1937 and the item of $1,000 with statutory 

interest thereon from July 9, 1934- . 


Frieod and Scanlan, JJ*, concur. 

m>@iBdLf .te©is:tai ^io.ti?.:t«.ta r . ■^buLont 

S8UA0 cni.r 

,iifOfioo .j^LL ,a«iJi*5^ JbiiiJ feH*!!^ 



^^^^^ I x^ ^^ \ 

JOHN H. GATELY, ,.^ ) W -g ^"^^-^idcA €\ y^ t*^ 

Appe^<re. ) O A ^ !n»r -e> i O 

On^,J^y 11, 1941, plaintiff, Rollin A. Sib, filed his state- 
ne^t^of claim in this action to recover a balance of $345 claimel 
to be due from defendant, John fl, Gately, for drilling a well for 
him in Jasper county, Indiana. The return of suiomons by the 
bailiff of the Municipal court showed that personal service was 
had upon defendant but he filed no appearance or statement of 
defense. Judgment by default for $345 was entered against defend- 
ant November 24, 1941, Thereafter defendant filed a special appear- 
ance in which he challenged the Jurisdiction of the trial court to 
enter the default Judgment against him and he included in such 
special appearance a motion to quash the return of the sumiuoas 
and to vacate the Judgment theretofore entered in favor of plain- 
tiff. On February 24, 1942 an order was entered quashing the 
return of the summons and vacating the Judgment, Plaintiff 
appeals from this order. 

Plaintiff's praecipe for record requested the clerk of the 
Municipal court to prepare the common law record for transmission 
to this court. Defendant did not file a praecipe for any addi- 
tional parts of the record for incorporation in the "record on 
appeal." Shortly after plaintiff-appellant filed his brief 
herein defendant-appellee filed a written motion that he be 
granted leave to file as part of the record in this court a 
report of proceedings as to matters which transpired upon the 
hearing of his motion to quash the return of the summons and to 

vacate the Judgment, Defendant's motion to file such report of 

•^JAH«[<?A p 

*^ "^ f ,v^ '■ At; .H mot 

«e:ffi;jB eM bom ,cJia U flHIoH ,ni:tGlBlq ,IW JI XlxrT. nO 

..01 new B snilllab lol ,xLBi^Q .H nrioT. '.JusfcfleleD aort eab sd ocJ 
eiid- xd mosmii& lo niiSiQi bAT ,m&lbal a^^^'o^ "^^al nl fllri 

-Msleb ^BxiiBSB 6ei6;tns ebw ^4^$ not ;JIx/b1©£) Xtf inei«3bx;t .sansleb 

-.seqqB Xsioeqe b bein cTnsbGsl.b^snBS-csriT .XW .^S lectoevoa ;tns 

o.t ;^ai/oo 'XsJti;t exIcT lo noWoi&aloDt eri* bB^aoLlBdo ed riolriw nl ean* 

,Lom £tx bsbuXooJt sd DCS Mlxi Jaiil;i83 cfflsaisbx^t -^XxfBleb siicT leias 

.ao^^a exlcr lo nixrcTsi edS d^Bup oi aoliom b ©onBi^sqqs Xalosqa 

^.a.i:^q lo "xoir^l nl heisiciQ s<ioloct©i©fI^ ^tneiHabi/t -^^i* ^*«5«^ ^^ ^^ 

lUitiiiBX^ .cfnsaiafcrt -r- .ni :.^.^v has euo^izai/a exi^ lo flix/:t8i 

^«re5io eixl:t aonl eXBsqcXB 
Sfi.i -to LH-i-siu .iiJ b&i&esjp&i 510091 101 eqiosciq s'llicTclBiq 
iioiasimansicr lol biooei ^bX nociatoo ^i BiBq^^q oi iiisoo XfiqioxmrM 
-.ibfcfi ^.£ -K)! ©qioesrrq b «Xn ;ton blfe JflB6flc)lea .^tiiioo aXrii o;t 
ao bioooi" exicf al noliBtoqiootil lol fe-soo»i eriJ lo ti-i^a l^oU 
Isiid 2Jtri beXil SaBLleqqB-ITitialBlq i»«fi ^;fiorfe ".Xfieqqs 
^ aii ^aitt iiolcroro ae^tJJti^ b boXll 99lXeqqs-;tflia>fl9l9b fl±*i«i 
B iimo zm at biooei ed^ lo ^tMq as ^Xll •rf ^tbsX beiiuij 
WLT noqjJ beilqena^ HeJtxiw Bis^tcTBE ocT aB ESIlifeesooiq lo cfioqw 
cKf toB BiiOfflE£«2 ed;t 10 nixf^rei &il;t xiaBx/p o;^ noiioai eXii lo »fllis«il 
lo ;tioqei rioxia sXll o:f noUoia a • cTnBbasl^a .crn««8&i»t ^* ***«•>' 

proceedings as part ©f the record herein was denied since the 
time allowed for filing same had expired. At the suggestion of 
this court defendant filed an answer to plaintiff-appellant»s 
objections to the motion to file the aforesaid report of pro- 
ceedings as part of the record on appeal and he stated in said 
answer (referring to the report of proceedinigs) that "if it were 
not before the court we admit that the court would necessarily 
under the law be compelled to find with the appellant and reverse 
the decision of the lower court •»***." 

Defendant is an attorney and acted pro se in this proceeding 
both in the lower court and here. Inasmuch as his statement 
just above quoted constituted confession of error on the record 
before us it is unnecessary to discuss the errors relied upon 
for reversal in plaintiff-appellant»s brief. 

The order of the Municipal court of Chicago of February 
24, 1942 quashing the return of suinmons and vacating the judg- 
ment of November 24, 1941, is reversed and the cause remanded 
with directions to confirm the judgment for $345 entered 
against d'fendant on November 24, 1941, 


Friend and Scanlan, JJ*^ concur « 

dJ- sjoal& boXasb 9Sbs uXotetS Jbioos-i oxW to Siisq ss esxilDssoeaq 

•..X; i^car^o^n j;Ii;c:ir :r'imv) " :j ..ylfflfcs ©w d"iuco sitJ sioTi^cf ;Jon 

iaisu-QT has *n«XI©qq.-. ewrfd- liJxv. iinil o:i b&lleqzoo ©d wjsI a/icf isbms 

hjBmBtE;^a slit as xicwiasjenl ,e*i©r -'I oriJ rti dJ^ocf 

jioo?^ srl:t no ioi*xo lo nolozslcos Lr-ijjJlJaiiOj:) ^sd"oxjp svods iaut 

■■^qss b^lle'i stoiie Bd:jr Efie&ai jassosisajE/ al :ti au siolscf 

eBfljSfirsT ©luueo ©j^;f Sub £;98T[9vei al ^X-^^Q^i t-^S f«cte9VoH to iuem 
bsisitna ^■^■ nsfssfeirt ^di anllr. ciot:foBilk ditw 


^TLfonoo j*I,u ,ii«XnBoS fins biasli'^ 


a corporatiotftj|_ 




• Appellant, 


In 1929^ plaintiff, a construction contractor, undertook 

the erection of a four-story and basement building on the 

premises known as 149-155 East Ohio street, Chicago, The 

building which had previously occupied the premises was a 

two-story structure » Adjoining it to the east at 157 East 

Ohio street was an old three-story building, which defendant 

had acquired as owner la 1927« Defendant contends that there 

had been some common usage of the west wall of 157 East Ohio 

street for over 50 years, but no existing party wall agreement 

covered the rights of the adjoining owner. 

On June 7, 1929> plaintiff advised defendant that It was 

about to start excavating for the foundation of the new building^ 

and notified it to take the necessary steps to protect its property^ 

Defendant thereupon engaged L* P, Friestedt Company to shore and 

underpin the wall, and paid some $1,600 for that service. However, 

Friestedt Company did not complete work on the entire wall but only 

the front eight feet and the rear four feet thereof, leaving the 

intervening space unsupported. Accordingly, June 27, 1939^ plaii^ 

tiff again notified defendant to shore the entire wall so that no 

damage would result to its building or delay plaintiff's work of 
excavation, 'hen defendant refused to comply with the second 
request, plaintiff undertook the completion of the work, and 
thereafter brought an action of trespass on the case for the 
reasonable expenses incurred. Trial by the court without a Jury 




( !i;Hi.i:^;i'i:-t''i 51.- ~' ■ •""■"" 

^afiS ^<^I tB *8s& B^$ o^ cfi jitlKJtot&A ,»tir*©i^rid^e t^o^s-owcf 
d-GBfeslefc linl^ ^■gn.tbX.liid x*mi B'-e^nsiS bio as, asm fesitt olrJO 

oirfO isftS ^^I lo IIsi? d-aaw «d^ lo s^^auis nosmoti stroe nsecf barf 

fects £"K3Xia Oct YKsqiBoO ,ti)«>o«©i'x'': , » .egesK» aoqusisxtd- S^/tafciieleQ 

Yl«o issd XIjbw sitctns aitt xio ^low s^«iq»i05 don ftifc xn^iqisioO ^bftlseliV 
f«iicl- gxsiVJseX ^loaied^ ^9«t tssol iBdt bAj bne. i'©©! id'^ls iaoil 9dS 

OR ;t£n^ 08 XIsw etliJnss eric? eiode o^ o*iiafjflp>'!- 6 bsill^on ntcae IIW 

lo >iiov- s'lliinlBlq -^sXsfc w sflX&XiJcrcf scfl o* ^Sm^i blacm ejaatal) 

JbHooea 6ti:i d&tw -^Iqaioo oS bdairlen: .Ifts&cjtflofc aaif .nolj-cvsoxa 

fcus ^:^iow srii lo noivtslqisoo «d:r ?J[ooJn&£tfij; "^tlctaJtaXq ^iz&ispei 

sdi^ tol eE£C) QtiS no sEJsqssi^J 'to nol;tOB as, d^xlaixoid i»;J^a©i8x!;t 

X^art 6 :imdit^ i'woo &d^ x^ XaioT ,b9vastml ee«xisqx» ©XcfsrK3aB»i 

re suited in a Judgment for plaintiff for $3,481,62^ from which 
defendant appeals* 

Defendant does not question the necessity for shoring and 
underpinning the wall as a protection to its building, nor the 
reasonableness of plaintiff *s charges, but predicates its defense 
solely on the theory that this was a party wall, not from its 
inception or by reason of any written agreement or statute, but 
because it had been used jointly as a coimnon wall of separation 
for so many years that it became a party wall by usage and 
prescription, and that since the adjoining owner undertook to 
sink the foundation for the new building lower than the existing 
wall, it became obligated to protect defendant's right to support 
in the wall, and save defendant harmless from any expense. This 
presented an affirmative defense, and it was therefore incumbent 
on defendant to establish it affirmatively by competent evidence, 
"The burden of proof is always on the one claiming an easement by 
adverse enjoyment, not only to show the enjoyment, but that it 
was adverse, under a claim of title and known to the owner, and 
that it has been uninterrupted; all of which must be affirmatively 
shown*" (Washburn, Easements and Servitude, 4th ed., p, 151, 
and cases cited therein,) 

In the absence of a written agreement a party wall can be- 
come such only by statute or prescription, and defendant does 
not invoke any statutory authority. Consequently, its claim 
that this was a party wall must be supported by evidence that 
a prescriptive right resulted from (1) a user; (2) for the 
prescriptive period of 20 years; (3) which was adverse and not 
permissive; (4) open and notorious; (5) under a claim of right; 
and (6) of which the landowner had knowledge, (Callaghan's 
Illinois Digest, vol, 5* PP« 4-353 et. a ieq»j sec, 11 et, seq .) 

Because defendant failed to include the original exhibits 
or copies thereof in the report of proceedings at the trial. It 

iiiixf"/ soil ^S^^IS-I^^£^ 'xot tltJatBlq 'Wl taesf^bul s ai. beilhif>i 

ij/<rf ^$:ijt; ■sJ-3 'xo d'aea©&i9H rfo:^^]:^' x«''S lo aoesoi x^ '^^ nolSq&oni 

r.nJt:*r. tx? cr:.+ nrxl.-^ nev/oX galMXiio' wen ^fJ fo'\ no t:^ -itniro'* ©ri:t Xola 

ii;Xsvl--p^''^'^'- • ''f^ -tajyffi j({9lilw lo 

rl:t^ ^:::0|/.f J:V 

-SLsbneteb no 
i. Ico-asq to ueBiucf exiT" 

.. ... .1. . 'xe-b£iL' ^egievbs esir>=,rf<.a.?-j2 ^flUJilrieaW) "«xnroriE 
, . IsicflJ- b»;tio 8«e,fto bas 

.. •.,^. :. -. '10 »on©acfs ertf nl 

5,,^liql'ioe8^q io e3"if:fsie "?<? "^Inc rious sunoo 

39jap&«i5to0 .x^liorijKs •^•xoji7i'j5;fa >jaB eiovnl cton 

rf r./v-f.,,, • : ;- .rf 'i PHffi XXsw ij^ Oijq B 8£w «ld;t d"cilt 

. ...V .,.- jsiluset id^it'i ftvWqlioaariq « 

& 98nevl>a asw risl... «.„.• ;..'i.oSX OS 'io 5oli«q ovl^lqiioeerKj 

, , v,*^., 'v.. jaisx© £ nefenu (^) {Siimlioioa fcn* ixeqo (^) |«vl88lBiie»q 

..ijci-i^sXIsO) ,v53i>«)X'^TOft3( &.3j1 lexrwofenrJ -^ " -"'Diiiw lo (i) fine 

(.£08 ,^£ XX ,0!?E t».gfg j»^--> C"^''-'' »"' ! ^ ^•■^'■'^'-' sloixiXII 

it ^i&tT:i esiS js sjclfceeooiq lo cfioqsi eri^ ni iOs^'iS-d^ aolqoo no 

4 -c't a'lr, ■ . 

.' vn -Jixi 

is somewhat difficult to visualize and understand references 
by witnesses to the physical characteristics of the wall upon 
which defendant relies for its contention that it was a party 
wall. However, certain facts are clearly shown. The wall in 
question was only eight inches thick. There was a chimney along 
the wall which defendant *s counsel say "protruded all the way 
down, but apparently part of it had been shaved off;" that "the 
roof joists and floor Joists from the old building went into the 
wall in question and that there were pockets in the wall where 
they went inj" that "the wall showed marks of stairways and marks 
where joists of the building that was torn down had joined this 
wall;" and that the wall showed holes where joists and pin anchors 
had been removed. There was also evidence that in years past 
defendant's building had been enlarged by additions to the frcait 
and rear of the original structure and of an extra floor on top. 
These circumstances are urged as supporting the contention that 
this was a party wall to which rights were acquired by user for 
the prescribed period of time. Although these facts indicate 
that defendant's wall had been used to support the adjoining 
building, it does not tend to prove that defendant and its 
predecessors in title had ever relied upon the building to the 
west for support) nor is there any evidence as to the time when 
the building to the west of defendant's property was erected, and 
therefore no showing as to the length of the "user" by defendant. 
Moreover, there is no indication that the user had been adverse, 
and for all that appears of record it may have been by mutual 
agreement of the owners. That the user contended for was not 
open and notorious is best evidenced by the fact that defendant 
itself did not know that there was any question of a party wall 
until it had a survey made of the premises after the building 

to the west had been torn down, and therefore it could not have 
made adverse use of the wall under a claim of right. Lastly 


.nr.1 riaw &^ .«wo«8 tl'^'^i^f!) ©IS 8^oel alsd-teo ^^©vewoH ^Llm 

^aolB ^©flial/lo s as^^ »'r£>rf^ .3C»lrf-^ as^rfwii id^i.& xXi» «aw lioiiaaiJp 

^JBW sffct lis fisfjifr^fotcr" XJ32 Xs8ai/o9 a»:tflsfi(a©lafc ^ixJw IIsw srW 

tfsii u. , L u...-, s«ibliecf bio ©iicJ lacnt a;tclat woXl &Qfi steiot looi 

_„,.,... rjjjv^ gjfj. fj2 s^saf^OQ erietr s-itsili^ iftrf-:? &g« noi;Ja6X/p fli XXaw 

a3ii-:an bius atflvrilijia to Kfi'tflis fcewofie XX^w sd^'* iedS »'jal :^n©w Tjsii^ 

^8£q a^B©'^ tii. c^sr::^ eemsfciyo ©Rio a^?.^ t.'irrri ,bevoes»i a^tf fcfiri 
jfio'il flfi^ oi anoi:^J:b£j£j x«f bes^^J'**® f^^^ci' bad icifcliixd a • ;tn$lMi«l€>f) 
,!io:r ao lool" ' " "" -^iHJoitfi^* Xaei:3lio eri* lo ibot 6fl£ 

-rol 1QZV x^ hBttisp'JR eifeW «;rx!§ii rfsMw cS lU^ X?i&^. & asw ahii 
»isoiI:r • rf§teoxl;tXA •snXcf lo f50ii»q fcedii^^oiq «li 

Sri;? o* Sfi-tfci^^ -^^^^ D^lXe^ i«v» &eii 0XiW al e^ocasofife^iq 

ai^ilw f9ai^ r^tC:!- c "- t^ts &is>f» ai ion iiioqqaz lol ctew 

Xsir^m T«r fi®®«^ »^fi^ "^^^ ^^ Mo^i ^o ai^eqqe ;rsfl:? IX« w^ ^s 

^on e«w tol fiefcnecffiOo we© mH ^<ari^' .«i«cwro exi^ lo ia&sio»TiB 

iWiha&'iBb is^ S:)&1 edi X^ t&oaeMre iee^ ai auoirtolott fms aeqo 

XXisw Viiaq a to HoXJ-»»up ^X^fi saw ois^dt iis<!:t vroixX :?on felb ^£e8crl 

§filbXiucJ ^fJ %»9^s. J!9»X«a^q adt lo »b«« x^vwa a i)«I ;tl XWntr 

9VsiI :roB blsjoo 31 ©aoltvisri^ fens ^«?rcfc mo& cro^ fe^ ^««w '^xtt o;f 
xXcfesJ ,:friaii to aXsXo » i»£>a« XX«w 0ri;J lo aaif seTd^ts 9l>M 

the record fails to disclose that the oraier against whom the right 
is sought had knowledge of the user» Having thus failed to show 
any agreement for a party wall or user which would give it the 
right to support, it was incumbent upon defendant to shore and 
underpin the wall in question when notified to do so, especially 
in view of plaintiff's evidence that, without shoring and under- 
pinning, even though plaintiff had exercised reasonable care in 
excavating, defendant's wall would have collapsed, with resultant 
damage to plaintiff's equipment and possible injury to its workmen 
engaged in the excavation, aai it was therefore necessary for plain- 
tiff to shore and underpin the wall to prevent damage and injury. 

Defendant having rested its case on the theory of a party 
wall by prescription, but having failed to affirmatively establish 
such defense, the court could not well have done otherwise than 
enter Judgment for plaintiff, and the Judgment is therefore 
affirmed , 


Sullivan, P, J,, and Scanlan, J,, concur* 

wGxis Q^ fesXirEl a^ttJ- gaJh^sS «tseiJ ©iSi lo s§l3»XwojSJi Sad •frfaeoa'*! 
acdi eaJtwi^ijrfjO sc0l> svaai Xlptr #«l! feX»©o Jiffoo !&ri^ ^&^mB*tBk AfHsz 

t •'- 


.J#^ , 


STATS OP OEIO- upon the reliation 
of Rodney P, Li®n, Superlntenden 
of Banks, in. ciiarge of the Liqi 
dation of ihe llaardiaa,, J^^lf t 
Company, Cleveland^ Ohio, ""'''^° 





The State of Ohio, upon the relation of Rodney P. Lien, 
Superintendent of Banks, in charge of the liquidation of The 
Guardian Trust Company of Cleveland, Ohio, appeals from an order 
of the Circuit court sustaining defendant's motion to strike its 
complaint which sought recovery against defendant upon his alleged 
promise to answer foi- the debt of his brother, and dismissing plain- 
tiff's suit. 

Prom the undisputed facts it appears that in I929 Henry 
Spero borrowed money from The Guardian Trust Company of Cleveland, 
Ohio, and entered into other transactions with the bank through 
which he became indebted to it in the total sum of $1,775# to- 
gether with interest. 

The bank evid(=!ntly Intended to press hiia for payment of 
the indebtedness and asked his brother, defendant, for the debtor's 
address, November 5» 1932, defendant answered the bank's letter 
as follows; 

"In answer to your inquiry of October 25 for the address of 
my brother, Henry Spero, it is as follows 1 II36I S, Irving, 
Morgan Park, 111. 

"I assume you wish to write him regarding money he owei 
the bank. In this connection, wish to state he has Just recently 
lost his position and I am sure will be unable at this time to do 

anything on that matter, 

"However, someday he will be in position to pay his debts 

.nruud^n-:^ ^.^ ^oi.. ,. .^ ._ cdsj-im spixgrr. ,-:- 

«o.' ^ •"""%'" '" ' ' -: '•• "■•" "» ■*!-^-> F-'-.i-'lefeCLt aofsoed »il rioJtriw 

^a^lv'il ,■ Id£II tmioLlot && al ^x ^oi^tqc; x'xn'sR ^laKd-cn;; xs^ 

.fit ,j(n6'' 
Brno Bd x&acM gaii -liiSGi loM 5d"liw 05 iiti;v-f rc^ '.'iijir :.; 

o6 oi imJtJ .^.txL-^ js sldjam; »cf IlJtw »iira «fi I boM xicIcfJtaoq alii ^-aol 

.locfisR! :tflxf:f .lo inJULf'icaa 
e:f«rf.^b alri xm o^ noli|ao(| iiJt "^d llts »ri x«^»«508 ^^»v»woB" 


and the writer assures you he will see to it that this debt l8 paid, 
and is sure that pressing him now for this money can not possibly 
bring any payment, but will so add to his worries that it will only 
delay getting him back on his feet, 

•♦Do not say this so as to save him any embarrassment, because 
he owes this money and you are justified in going after it, but there 
has not been any attempt on his part to defraud - he has merely been 
the victim of circmastances for the last five years - circumstances 
outside of his control, 

"Someday, he will be straightened around and the Guardian 
Trust will have that money, but how long that will take, cannot tell," 

The sole question presented is whether the foregoing letter 
can be construed as a promise in writing on the part of defendant to 
answer for the debt of his brother, under ohap. 59* sec. 1, 111, 
Kev, Stat. 1941, which reads: "That no action shall be brought, *^** 
whereby to charge the defendant upon any special promise to answer 
for the debt, default or miscarriage of another person, ^'*-^ unless 
the promise or agreement upon which such action shall be brought, 
or some memorandum or note thereof, shall be in writing, and signed 
by the party to be charged therewith, or some other person thereunto 
by him lawfully authorized," 

Plaintiff cites cases supporting his contention "that when 
one binds himself to be responsible for another's debt already made, 
and of which he has knowledge when he signs, no particular form of 
words is necessary, excepting that the writing must be so interpreted 
as to lead anyone of reasonable prudence to construe it as meaning 
that if the original debtor did not pay the promisor would," How*- 
ever, in all the decisions cited the instrument which was held to 
constitute a guarantee was written or executed p ^si^an t to a previoug 
Request by the creditor for a guarantee. Thus, in Exchange NatJopff^ 
Bank of Spokane v. Pantages, 74 Wash. 48l, 133 Pac. 1025, defendant 
corporation, of which Alex.Pantages was president, had a matured 

Xl^t^oq,^ioa n^.x&acm Siisli lol ■^oa tglii aaleae^q j-^oLf 911/3 aJt has 
Xlixo SJUtw it tBdi eeiii^w ^jbtl o. ad ,;Jfl©gq;j5q ^H^ gfliicf 

eaif£-osd^a:fja[Sfli«L?B'x^«<i«2> Xae isixi 9v/4» o:> 2b oa sirfJ- ijas ^on oQ" 
a-jsfld- iu(S ^il le^la ^alo$ al bBl'ilizssl &ib 130% has, -^eaoa tldi aowo ed 
.(isscf "^cXsif«[ ft-sJi Ml -• &w«ilef) o:t cfxsq aJtri no i^qjaaeiiB ^b nescf ^on sfid 

.cislfcifii^ 9«id- £icu3 ,f)mioia &9C[€>;+xlgli&'!Eil'8 fief IIJ^ ed ^ijsJbcc.o.-" 

^.Iie;f cfomijso ^s^isd Xliw J-advt ^oi ifiofi Ssiii ,^c*ioai ^Ij^ »v4;ri IXiw iJaxrtT 

■■"■'■ I ■. - 

*->** ^iA^£iQi<S 9(S Ilfiiia jsoxJ-Ois oxi d^firfl'" :s&ii«i xioidw ^I4^^I ,.d'6d"3 ,voH 
^swajiB od saiiaoiq iaJtoeqa -^jcls aoqv jtiBbaelab edi sgi^iip oct xc^^^^rf* 

^ :iisx;0'icf Bd Xlj^a fjoiios lioirs dohiv noqsi dneaesigfi 10 eaJlajQiq WW 

xiadw j-afi;^" ££oicrn6:iaoo eld scJtJ-noqqu^ a^aao as;?lo lllcl-nlfiXl 

^sbsm YbBCJitlB ^tfsJb c'l'iiionfi lol eldlexioqaei ed o^^ llsajolri efcnld sno 

lo flsnol 'iiiXifoicfisq on ^sngis ail a&d^ o^fesIwofDl «j»d exi ifoixfv. lo fwifi 

i. * JoTtqis^txil oc 9d v-fexflg 3|Bl;fiTW eriJ- dadd- gnl^qGoxs ^-^oseeeoec si abiow 

ti as di ex;iianoo o.t soctefejaiq sXdaapas^T: to sco-^os l)ji©X od bb 

'.Mjjow loaXcioaq eriJ- ^^ doa bib ^o^ds£> XsaX^jiX'io ed;t 5i cfjacW 

oj bXeri saw ji»Jtil«r dnsmu^rdanx ©dd beJ-lo Baoieios;'6 ©£CJ XXa nl ^asva 

dnstcsl©!. ^QlSOX .0X5^ ill ^X8a .r-- f'O ^ee^isdxu&q .v eaealogS lo 3taag 
JbWfJdBEi JB bBd 4.tnr--5iEoiq aa/ aPS&JXiisSl.xQXA iloXriw lo ^ncldaioqioo 

-3- !■ 

loan with the plaintiff bank which the corporation desired to 
renew. The bank refused renewal of the indebtedness unless the 

note made by the corporation was guaranteed by Pantages Individually, 

and the latter thereupon telegraphed en officer of the iSsktXK cor- 
poration as follows: "Tell bank I request them to renew the note. 
Security just as good now as irtien loan was first made and they are 
collecting interest on their money. I will arrange things satisfac- 
tory to them upon my return to Seattle," The court concluded from 
these circumstances that "it was clearly the intention of the defend- 
ant to guarantee the payment of the note," In Wills v. R-Oss et al >j 
*J^ Ind, 1, it appeared that plaintiff was unwilling to sell any mer- 
chandise to the firm of Landers & V'ills upon credit. The defendant, 
who was present, promised that if the plaintiff would sell the goods, 
"he would be security to them for the payment of the same, and 
guarantee the payment," In reliance on that promise, plaintiff 
delivered the merchandise, Vrtien the bill remained unpaid defendant 
wrote the following letter: "Yours at hand, and contents noted. 
Give John a little more time, and I will see that you get your money," 
Upon receipt of that letter the d-^btor was given a six-«ionth exten- 
sion. The court held, of course, that the provisions of the Statute 
of Frauds had been compliod with, and in the light of the circuHb- 
stances there shown the letter constituted a guarantee. In Armstrong. 
Gator & Company v. Snyder et al .^ 15 Tex. Civ, A, 394, 39 S, Vy^, 379, 
defendant, pursuant to request of the creditor for a guarantee, wrote 
a letter saying that "Mrs^ Snyder wished for me to endorse a note for 
balance due you," and said that "I will see that she will remit from 
time to time until your account is settled," Under these circumstances 
the court interpreted the writing as a guarantee. Similar facts 
existed in Stern v. Deutsch e 9 Kans, A, 218, 59 Pac, 687, and Hamlin 
V. Pisery 163 HI. App. 51. 

In determining whether the letter in the case at bar consti- 
tutes a guarantee, the entire instrument must be considered and effect 

,r4da sdi wsjti fJ d-asx/p^'i I xnacf IIsT" :8i?oIIol as noJtctsioq 

SIS x®JC^^ J^^s efcjsHi ;Ja^ll Sisswr fijaol netivf 3b won boog aa ievl x'^liiiOfiQ 

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aioil b&fecXoxioo ^uioo &ti'l ***fiIii&Bd> oi aiffS^'i trn aoqis a&di o:f xiol 

-isjE -^B IX3fc o;f sflilXlwcJT a«w lllii^iiiaXq ;tsri;f Bsiseqqs ;?! ^X ,iinl \^ 

^Jazineleb ailT .cfifesio coq^r ^XX f> aiefixusj lo anil srti ot ©aXbcado 

^r.Jfcoos £»jrf^ XXee blBov jmalalq «xi* Ix iMiti fe«EX«eiq ,:}^fi©E&i[q esw or(w 

>ui.5 ^^JKS8 Olid- le cf-iseiincsti f^di rol aisri^f o;J Tjjiiuoee sd bXuow eri" 

llXiffilfiXq ^£felmoT[q issi:} ao «9iisiXf'i al "^itflear^isq '^di eed-tuiaiij 

^iisljnslgt filjeqmj x)eniscis^ lltd !?jtf^ nexlJ? .ssXfcuanort&a eifcr boievlleb 

.rajcn aJ^flsi/ioo f>nB ^.fonari Sa e^ijyoY" -leJ-d-eX snXwoXXol e-ild- e^oiw 

'^ .\'cnoia ia>o"? ^«>s juo^ :fj3iU e?a IXiw I fenjR ^aaJtcf ©lom ©Xi-J-lX £ raioL svlO 

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i5cJif;t;iJ-ii '3d:} lo aaolalvo-iq 9ri;J ^J^jSiriJ ^saixroo lo ^feX.-fJ cfixroa exl!f .noXa 

-uj;©*!*' ' '■ lo cffljiX ©jii ni bus ,f[;^lw feslXqsioo nssd fijBif abjjs^ffi lo 

tSS9ll2g2ii — . - i^JriBifiJkfg ii !>©j^tf:tX;Jaiioo To,J;t?>X sxa" rworia eisrLt asonsia 

te^£ .^^ .3 eC fM?£ .A ,VX0 .xeT ^X ,,.l^M,.x^MMsi..*y V^f ^qa ^ O ; » loJaO 

€4o*i^ ^Qeta&itiSrg b 10I no.+Xfcf3M» Qd& lo d^eeifps"! oJ- itiiBX/arujq ^SsL&baole^b 

Tol ®^on 6 eeiobfle o& em 10'i f>erieiw •cefc^cfi^ #8iM" ;t«nd^ sfll^sa *io:f;t»X « 

moil jiiii?i iXXw exla -t^d" see XXXw I" cf^ri^ bise iws "^i/oy ewfc ©ofl-sXscf 

^^ -•-.^;. r-!^ Basdtt isbnV ♦♦,fo©X:tJ-»a aX i^xjouocos itsa^ liitw €,ali oS emli 

c-;Jsb1 islimlB . aft^tflsi^^-Bs ^ ^^ s^JX^w 9di ba:i^iqtBia± iiaos edi 

zlLl^'Jz £»n[ri ^'^^'^ ^'^-'^ -' ^^.f'- .■- ,-;;v" ^ ^t ^oeJ^irag .V nnsiS nX £>©;t8Xxs 

,X^ .qqA .XXI £dX .i&aX<! .▼ 
-L. c.L.>.. -^i.... .1.. -i-^.. . . •i9fl3'0dw jtnXflXBii»*sX) Hi 

^^ 219 

given to all the langxiage employed, Hopkins v. Schallertf 195 S*--^*/ 

(Tex. Civ, A,), We think the only reasonable construction of the 
document under consideration is that defendant "will see to it that 
this debt is paid" when Henry Spero "will be straightened around" 
and "the Guardian Trust will have that money, but how long :hat 
will take, can not tell," Decisions cited by defendant are generally 
to the effect that the import of defendant's letter does not consti- 
tute a promise to pay. In Williams & Flash Co, v. Carpenter^ 32 H, 
!• 34-9, 79 Atl, 821, the father of the president of a corporate 
debtor wrote in part as follows: "Time is what they need and you 
win get every dollar due you« *^^ it calls for time which I feel 
you will agree with me you should grant them under the ciicumstanees 
if you can be assured you are not to suffer by the delay," In dis- 
cussing the correspondence that passed between the parties, the 
court posed the question: "Did the writer thereby intend to guar- 
antee the payment of the claim of the plaintiff?" and ansvrered the 
inquiry by saying that "He does not say so. He desires to convince 
the plaintiff of his firm belief that its debtor will protect its 
interest. But it is important not only to determine what the de- 
fendant meant by his letter but also what the plaintiff understood 
him to mean thereby, and its actions at or about the time of the 
reception of the letter may speak louder than its words thereafter," 
and concluded that the letter did not constitute a promise to pay. 
In Staple v. Vicksbure aterworks Go.y 90 Hiss. 848, 44 So, 766, 
d fendant wrote plaintiff as follows: "You call on my brother each 
Monday morning, and ask him for the amount right there, I would like 
you to be a little easy on him by making it $15, If he pays a part., 
draw on me on that day for the balance due for the preceding weekj 
*^**.'' The court held this communication to be "a mere tentative and 
provisional arrangement, from which we do not think there can be 
deduced any undertaking on the part of 0, W, Staple definitely and 

.,- .,„f«^+.. ,,.r ( ; •• ,-n wr-^rr- vTG«H n©rlw "bluq el clcf9& ^irf* 
;•.:,• ..3l wod ;t«tf ,v-.- .--^^ -■' -^'^ ^^''^'^'^ nBlbi&iiO 9Ai" baa 

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.0£ii,j£.;sii.s-.Xo adit isbnj? «eri:f ma^ig blssotie ijox em dcTlw eeias I-t^w uox 

^,iJ- b^'i^z^^ ka:^ "?ni:fi:ilBl- -r-- • S^'^^ "^o O-nsiircsq exi* e^^fl^ 

oonivnoD oi asala^fc eE .oe ^c. un ...ob ^ *bxC.^ sfll^sa ^d ^ilxipnl 

:J± ^oe^oiq mw ioidl,>t .:•• ' t^Hecf r^^i- alrllo Wiiilslq ericT 

trjl;r ealffi'is^ob o.t -lao jon tnscfioqiiil ei :H *»a .^tasiscTlil 

boo:iai^&m; lll^rxii^a 0d:J JbtIw oeI;5 tud ^^ii^I zM \d iamt^ ioMbaet 

rfi 'I-. Dfiil:^ 9ii;J SaodB, lo ;:rB eaoitsB a^ti bn« .Ydeisxit nssfflt at «lri 

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xiosl ^^io-i<i xm no IXbo i^oY" iewo_i.- .-^ lll^«lBXq *toiw ^«Bbn«l.b 

G2[iX bis: '^li'^ invoBUB otii lol mlrf 2ie» fena .^nlflioiB xsbaoM 

^:!T£Bq s s^?^q eri 1i .^I- cti s^liiaK X^ atd Co x^^ ^^^^^ » ''a °^ °^ 

-::e^ SOlbeoeaq exi:t lol ^ifb strnBl.d aricT lol ^r^b i^di no es no wa-ib 

^cr nBD siedi ^irl.:} don ob ew liolxlw bioi-I ,:f«©nfe?nfliiB Xfinoiaivoac; 
i.,. ^Xa^lnn.b .XqB^a .W .0 Ic .a«q eri^ no ^^.i^^bnss ^ booul^v^ 


cartainly to beoome a guarantor for the indebtedness of the Tr©y 
Laundry," and held that the letter did not constitute defendant a 
guarantor of the debt. In Kenneweg Co. v. FlimeVj . 98 Md, 114, % 
Atl, 432, defendant vias sought to be held on a letter written in 
reply to an inquiry from the buyer concerning the seller, vrhich 
reads in part: "We are very much interested in seeing that you get 
the goods, and frcaa the position we occupy we would say that the con- 
tract is good, and that we will lo uk after the same, both to your 
interf=^st and for our own." It was held that this did not constitute 
guarantee of performance. In Fain Grocery Co. v . EarlVf I07 S, S. 
497 (N.C.), the court had occasion to construe the phrase '*any justi- 
fiable claims will be taken care of promptly," and held th^t it waj 
merely a statement of opinion as to the debtor's financial responsi- 
bility. Numerous other cases are cited and discussed in Taylor v. 
First State Bank of Kawley^ 178 S, V/, 3p (Court of Civil Appeals of 
Texas), following the conclusions reached in the foregoing decisions 
cited by defendant, ^■f'e think the letter in question carinot fairly 
b« construed as anything more thsn a request that the bank give de- 
fe.ader<.t*s brother some additional tine in which to pay his debt. 
Moreover, there is nothing of record to indicate that the bank had 
accepted defendant's a ssuranc e or that it vras reiving on his letter 
of rrovember 5* I93>? fQr payment of the indebtedness. Its letter to 
dafendjint merely asked for the debtor's address, evidently for the 
sole purpose of prosecuting its claira against Mm, If the bank had 
relied en defendant's for paj^ent cf his brother's debt, it 
would undoubtedly have answered the coEniunication and indicated its 
intention to hold defendant as a guarantor, but no further corres- 
pondence passed between the parties, and we would therefore not be 
warranted in holding that the bank, after receipt of the letter of 
November 5» relied on defendant's promise for payment of the indebted- 
ness, without any time limitation* 

Defendant also raises the question of a valid consideration. 

iit&tncleb 9ijs^l)zii<>o jxm. bib i^Stel eH'^ &Btl^ bSjsA bti£ ^ ^x'^bmsed 

ill necfctJt^rsf iBi^&I & ito JbXaii &€f oJ- d-ilsaoa saw i^fl&iyi&lei) ^sS-f- .X^A 

i-eg «o^ J-sfiUf ill bSf&tsi^iGl dtmm X'^^'y ?>'3:£ sW" tii&q al zb&9i 
-rioo sricf JBilcJ- t£2 X^XtJOW ^w ^<j^©©o sir isox^^iaoq stW jboiI I)ii:s ^sboos otLt 

^J-rfi^iiiico I'orr 5i: .^1^:+ LZ^'d :r:ju^ &1 ^ ,:[i^o isjo lol bas is^isial 

» >- , - ^i„...i,^:^^....*..„,..^_,., :.-._... _...^.;.-„-^:. .--- , ' 'MumnQfiBq 1© odJ-ndi^ira 

ujt;w j-j: JMJ' bla^. I>a.«s "^^jXr/qaraiq to ©ijss nejlsi- ssf Iliw aaiLsXo «X«fsil 

-' noqee^ JLeloruac.ll e.^i'oS4-^'b arid' o;t ais ifoiaiqo lo ^iissif-^fi^e e XjCsiaa 

»*,.i.JS2i3J5l ^ |)9£2j;iosiL faa;£ &«<^X» s«r« aesBO lad^o ikBo-xeayJI ,'x*lllrf 

lo eL&eqqk llrlO lo ^T'lisoO) ^C .-f ,a 8^1 ^Y aXw^H lo iiaBS Bi&itE teil^ 
imolBlOBb liiiogBiol arfi Ml. fe®il5B»'5 8fioiE.uIcn(?o »j|^ ^JtwoXXol ^CesxeT 

... -:j5 aid -^^q o;t floidt? nl &Bli iBttotiliibe «m^a ifirid-o^d b * ;t.ri3bfio'!: 

aiid' io1 x^iiwblvf^ ^aasiD^js e'i9icft>fe sjfcf lot heatea ^Xo-xeis ifLabfl^lefc 
bflai 3inacf or'j- 11 ^aiAxt ^aelas^ mk&-& ^3rl '%alia9h@<iiq lo 9aof[ij;;q tXoit 

" ': ^•■' ■■• t - - ^ •-' -^ ■ ,-tn[f?mxsq rrol ^© ''••'■ '*itte.bafilBi: no &9ll»i 

ouj. u-: .! -j,::: L tr:ji. .22100 ®^# fes-s^f? a '.■--• • v^ ■^XDaitfjJObm/" frXiJOW 

- - i^astutr^i ^iistiTOldf' 6ioxi o:t nol^ae^ol 

90- JOii ■;io'i:'::oii:i rir;:;-. ■, ^ bnz ^aeU'^eq 'i'f^ n-^sw^orf R®88£q eMXdEiaoq; 

"io na^^tel sii;^ lo d-qlsosi rrs^lfi ^aiftisd 9*^ cf«il;J ^niblod til bBianiiffs 
-Lsiidsbai »di lo inmsz&fl lol aalxsoiq e»;?^rtQi3«»le5 ao fe®lX**^ ^^ TotfntstvoH 

*uol:f*^LalX ©sal* x«fl ;Jiro/i;Jlw ^gaen 
.noi*£i©bieaoo bXXisv b lo noliteaup siid- Eetl&i oals ;tnBl«i«loa 


He admits that forbearance may constitute a sufficient consider- 

ation, but argues that it must be for/reasonably fixed period of 

time, and there is nothing in the letter at bar which satisfiies 
that requirement. 

We are of opinion that the court properly sustained de- 
fendant's motion to strike the complaint and ordered the disKdssal 
of plaintiff's suit. The judgment is therefore affirmed, 


Sullivan, P. J., and Scanlan, J,, concur. 


a corporation. 



On pfecember 26, 1939, plaintiff filed a suit to enforce 
the collection of a promissory note executed by defendant on 
April 1, 19360 Personal service was had on defendant and on 
January 5# 194-0, plaintiff recovered a Judgment by default 
against him for $701«50# Execution, issued on the judgment, 
was personally served upon defendant on February 2, 194-0, and 
the sheriff »s return recites "no property found and no part 
satisfied," and that the debtor had filed a debtor's schedule. 
On November 7, 194-0, a supplemental citation was personally 
served upon defendant but he failed to appear in court. On 
January 8, 1941, defendant filed a verified motion under 
section 72 of the Practice Act, Plaintiff filed a motion to 
strike defendant's motion. On April 30, 1941, the trial court, 
instead of passing upon plaintiff's motion to strike, entered 
an order vacating the Judgment, and granting defendant leave 
to file a defense and a counterclaim, and ruling plaintiff to 
answer said defense and coxjnterclaim within thirty days. Plain- 
tiff appeals from that order. 

Defendant's verified motion reads as follows: 
"Wow comes the defendant, Charles T, Davis, and moves the 
court to vacate the Judgment heretofore entered herein on January 
5, 1940 in the sum of Seven Hundred One and 50/IOO Dollars and 
costs and asks leave to file his appearance and affidavit of 
merits and counterclaim herein and in support of said motion 
says t 


.Tsuoo SET w mmmo sj-t cHggviJse ^uuiiiioasoiTgut .em 

xto ^HBfcne^sfe X^ bsd^oosxa @;ioa xioesJtraoiq b lo noi^fosIXoo arid' 
no fena ctxiJBtoslafi no feed s^nr solvi&a iBaoBi&l ,^£^1 ^l XirrqA 

boB ^O^^l ^S ifiJBfficfa'^ ao ^aBbaBl&b aoqn !>ev7®e T£XiBno8i9q sbw 

itBq on bas bmiot ^^it^qoiq on" eaJ-lofii HTXid^orr a'lliisxie 9ri;t 

.9Xi/f)9rio8 a'loJaeb b £>eXXl &sxf loJdsb edS tntiS bns ** ^bellatisz 

■^XXsaoaisq sx^w jdOictsd'Jto Xr^nsfiieXqqjiii s ^0>^X ^^^ tedtaovoTL flO 

nO ,d" £tl i&9>qqs oi b&lt&l ©fl iJ3d ia&baelf^b aoqis fisvtsa 

isbflxr aolioa bellti&v a 5sXll :tflJ3jbfi©T:el> ^X-^^X ,8 Y^sJ^J^fi''^ 

o^ aolcfois B f5»Xi:l *5'il,JflJtsX'^I ,:foA g>oWoB*£^ erfj lo S^ nolcTosa 

^jii/oo XsliJ ©rtt ^XK^X ^0£ Xi^qA nO ,nol&om 2»ctflBJbn©1sb safio^i 

bs'iedri© <i93U!r;:l8 o^ noitosr a'l'^litxiiBXq Hoqu aniaasq lo bsBiint 

evaoX cfitsbnelefe sjsXJ-asig fens ,jii©fiisfej^{; bA& sai.tBOBV isb-io hb 

oi lll^alBlq -salliJi baB ^ml&loifi&twoo b ba& ©axislsb a sXXl od" 

-al.eX'i •fiY-'Sb ^?iiri;t Girivtiw atiisXo'xecfxttroo 5nB aaiisleb btsa i«wbiis 

«n9fcio j-isilj Bioil eXfisqqs Hid' 

'SwoXXol 8B zb&Bi col&om bsilX^tsv 8*jn6£»fl9l9a 

»ii^ asTom bns ^slvsG ,T a©XiBriO ^fn&bn9l9b f>tii gejnoo woW" 

^oiifjflisX, no al&i&d beieiaQ aiotoieiod ia&m^bssl eriJ- 9&bo3V o& iivoo 

baa a^fiXXoG 00X\0^ bas sxxO 5ei£iim;H nsvee lo ou^e 9ii;t aX 0-M?X ^^ 

lo ;tXv36X"llj8 bns &f)£ist&9qqR ajfeil sXXl ocf &vb9X ejJas ftafi a^feoo 

nolJoBi BXfse lo iioqqve ai. ba» alet^d «1bX oiedTLUoo itcis alirrwa 

"That In I92I this defendant, Charles T, Davis, became a 
non compos mentis and was so found to be non compos mentis by 
the court, and that Charles T, Davis continued to be non compos 
mentis until May of .1940; that this defendant was restored to 
legal capacity by decree of court entered on to-wit, Nov^aber 
27, 194-0, and that this defendant was non compos mentis at the 
time of the execution of the note involved herein and was non 
compos mentis at the time of the starting of this suit and at 
the time of the entry of the judgment herein. 

"Wherefore, this defendant prays that the said above men- 
tioned judgment be vacated and set aside and that this defendant 
be given leave to file his appearance and affidavit of merits 
and counterclaim herein and that the plaintiff be required to 
answer said counterclaim, and that this defendant have such 
other and further relief as to the court shall seem proper, 

"Charles T» Davis" 

Under the provisions of the Civil Practice Act a motion to 
strike takes the place of a demurrer as formerly employed and 
the motion admits all well pleaded allegations of fact in de- 
fendant's motion. It does not admit conclusions or inferences 
drawn by the pleader, and in considering plaintiff's motion to 
strike, defendant's motion under section 72 is construed most 
strongly against the pleader. 

Plaintiff's motion to strike was based upon the following 

"1, The petition states no cause of action and is in- 
capable of being so amended so as to state a cause of action*, 

"2« The petition fails to state the name and location of 
the court which adjudicated said defendant to be an insane 

"3« The petition fails to state the name and location 
of the court which restored said defendant to sanity. 

20QiiK>o HOIS Bd^:^ b^mft:inoo si^^ .r ssI^sifO iBdt has ^^-woo ^ 

ctoc BS* faxfi ojisi&ri bevXovnl s^oa ©iid-,lo isoi;ti.'a8X.« &sit .iQ eati 

^eiE fevoilB feliss «^.^ tai^^ eYisif ifl£feflp^»i> 2-trfJ ^?^ol^t:srf^^•^ 
Biki.&ei lo ilv^hiVtB fm& &minB9qqB sill 9lJt% oi svcsX aisvis scf 

.«9qcK£q E!©©e II^^s .ti0O© aii^ o* s« !t»U9Tt ^ed;f7^ fcae rt»il;fo 

^iDb ill JOBt lo aGoiJeaslXB fc«&i>45aq XXew XXs 3;JJtsD* aoX^oia^ 

Oct noxJos! 8»'5'tWisiBXq gaiiofixaiioO- BJt 6s« »^ei3*6Xqt &di x<i ^s'xfc 
c?3oa bejiJ-x^sGoo ai S^ jsol;fo»e uo/jflc flolcfoa E'4issi>ii8'ie2> t^^IXicfs 

^noKtOB lo osyeo « s;jBde oj bb oa l)»i>£i«iaij os saXfed xo eX<Jii.q*o 
to coWbooX hna eau&n 8ii^ «c^£;t^ o^ aXijal noicTi^sq sxlT •S" 

,X^-tnja3 OCT ia^bRsteb bt&i JbsiocTaei rioXilw :fnoo» Bdt lo 


"4. The petition falls to state the date of the defend- 
ant's adjudication as an insane person, 

"J?. The petition fails to state that the defendant was 
confined to &n as/luffi or Ijastitution for the insane and if so, 
when he was released therefroa, 

"6. The petition fails co state whether said defendant 
was confined in an asylum at the time he incurred the indebted- 
ness sued upon in this cause and if he was confined in an asylus 
at the time of service of summons upon him in this action, 

"7, The petition fails to state irtiether the defendant had 
imowiedge cf the nature ©f the plaintiff's suit at the time he 
was served with a summons, 

"8, The petition fails to state why said defendant failed 
to take steps to have the guardian ad litem appointed to defend 
said cause of action or why said defendant, if he had knowledge 
of the pendency of this suit, failed to present a plea of insanity 
to said cause of action until the filing of his petition herein 
on the 8th day of January, 1941," 

Plaintiff filed In support of its raotion to strike an affi- 
davit that sets up at some length certain alleged proceedings 
under three indictments that were returned against the defendant 
In February, 1921, in the State of New York, We do not deem it 
necessary to recite in detail the alleged facts set up in the 
said affidavit for the reason that the affidavit could not proper- 
ly be considered in the determination of the motion to strike. 
Upon the hearing of the motion to strike the trial court allowed 
defendant to file what purports to be a decree of the Superior 
court of the County of Los Angeles, State of California, entered 
November 26, 1940, "In the Matter of the Application of Charles 
T, Davis to be declared sane and restored to legal capacity," 
It Is hardly necessary to state that this decree should not 

«.i)0icfe£)nJ: sdc^ fc-si-oi/ofli: ^xf ©lai:* sfi>t ^s ao;/I'^es ass ax fe^altnod 1i«ir 
jsul"^as a& ai fjaniixnot) asw a«! li: £»fx« ©ajtf,«o ajjjcfd- aJt jkoqxt ftftj^s 88»ut 

ad s«xl srfd- is itus. z*Vil^alBlq mLi 1e ®nj3;fsR bAS Jo B^btlyfotxi 

^eitoivMBs s iiibr t&riBz saw 

'MfiPI ^^isuncX ^© Ysf> ri:^8 wtt no 
"lllB R& sailed- 5 o:^ iiolcfoi' ej- oqqoa ai fielll '^llcJislfil'f 

esiiibSfifOoiq 6©3©IIb iiisd'i^s ri^SnsX SiEoa ^g qjs a;t*8 Jarfit ^Ivsb 

il miBb J-oxx Ob eW *3£'ioY »»T5 16 e^fjs.t3 «ii^ «i ^ISi^I ^x^si^icf®^ al 
sxl;? nl qw cfsa ec^o^I £>fi8ellxi sdcT llstftl^ at &ilo&i od" -^seasoon 

fc9woIlB d-'ii/oo liil'id- »ri:f ftjJln^e o.t f«)l:to« !5f!:t 1» jatiissil Bjrf;f noqU 

bBVL9in-3 ^sin'iolilisO to i^£cr3 ^aelssnA 3«J '>o \:crniraO •ri:r to Jiiroo 

**,y.;?iOBq80 Iss^I oi b^ioci-aai ba& ©aee bstisloof) ©cf o;* ejtvi^ .T 

have been admitted nor considered by the trial court in passing 
upon the motion to strike, but, nevertheless, the trial court 
stated when he entered the Judgment in question that he bassd 
his action upon the California decree. Strange as it may seem, 
the trial court entered no order upon plaintiff's motion to strike 
and he seems to have proceeded upon the assumption that the cauise 
was at issue, that evidence for both sides had been h«sa3?d, and 
that he was warranted in entering a final judgment in the cause. 
The action to strike tested the sufficiency of defendant's motion 
under section 72 and the allegations in defendant's motion eould 
not be aided by evidence offered on the hearing of the motion to 
strike, and it was the plain duty of the trial court to pass 
upon the motion to strike instead of entering a final judgment 
in the cause when the cause was not at issue. 

That defendant's motion under section ^2 was vulnerable 
to plaintiff's motion to strike cannot seriously be questioned. 
Defendant seeks to defend his motion by contending that plain- 
tiff's motion to strike admits that defendant was non comp o s 
mentis at the time of the institution of the suit and was non 
compos mentis at the time of the entry of the judgment in the 
original suit. Plaintiff's motion to strike, as we have hereto- 
fore stated, admits all well pleaded allegations in defendant's 
motion, 'A^t court found defendant non compos mentis ? And 
what were the proceedings and the judgment in that court? What 
court restored defendant to legal capacity? And what were the 
proceedings and the judgment in that court? Prom aught that 
appears in the allegations of defendant's motion there is nothing 
from wh,ich it would appear that the alleged courts had jurisdic- 
tion of the subject matter. The proceedings and the judgment in 
each of the two alleged causes should have been set up in defend- 
ant's motion. Plaintiff strenuously contends that defendant 
would be unable to allege proceedings in any court wherein be 

•woo isjtti* 9Af ^&soi9dii&v»B. ^fsjd ,»3{J:*cJ-e oi xioliom sdi aoqu 
^Ei&Be x^'^ ^1 9B r^ . iiino'iilisS 9d;i aoqis aol^tis, atri 

bn.ii ^b*iQ^d aeoff bad' ssMa i£;?oc ^''isxl^t ,6j;gal ^s s&w 

bluos aos.:^6m Q^isdikw ?,aot&ii^®ll& 9iid& baa ^^ actio(■^^ nabasj 

^iiSfiiEtwt Isnil « SjCii-Tf^jnG '):o fcjse^tajttl ©afl- noi^fon ©dv noqif 

*fjsiiol^fi&up ed xi^Ejralise ionasc d:igii;te oct xsolcfom a'^ll^nlslq o^ 
- -tjslq ia^j lixiiDxts^ffOs t<J aoWojs aid i>n©leb oi a:tfe©e ;Jnsl>n9^9G 

0i:ilf ^^ ^tt^ ^^iJ?^- "^^'^ '-^ noiiJs:^tSBcJ. Bdi Jo ?>ml:) ad J :j& zlSsnuti 

~od^slsd ei'sd Sfw eb ^f:-3(i^;ta Ovj- «ol:fofii B'l'^'? ,.tljja iaal^tio 

e*:frfsfcKsl&f) nl anolrfssolls fesbesli? Ilf.-, ^bsi^Bis »io1 

fcjtiA v el;j-aft^ aocfgipo gcg J-fli5fi«©^f?£) fitOifol .tnxroo :^sd^ .aolioa 

^fidr: ti^xLfOo d■adc^ nl ;:}iX9issfcjL.'t ®^ Jb£"5 esalbeeaoiQ arid- etcaw cTarfn 

i&di :^ii^iS£i sKJi^l '^Smio^ iadS al Snam^iLtil »d.t ba& ajalfessooiq 

;:irLld:ton el eisdJ^ noiictn a'jnsfmslsf^ '?o sjio Wes^IlB srid' nl Bifisqqs 

«oi&el'3;jt &£d acf'^ooo fe'^asll^ sd;^ ; _ i-js^qa bliiov it doMvr ooil 

fli :fn£;i!i5|I>fct; edcf fais E$alf>©sooiQ »dT .tsid'sa iop^^De «d:f 'to noW 

-bxrs'xPl': fd 01.* :i-ss /(i^i^cT evtiH filjyons es>£x/.f) '■'•'s^rr owi M.-* "^o t'oeo 

was found n on compos menti s. The trial court should havs sus- 
tained the motion to strike. 

The judgment order of the Municipal court of Chicago of 
April 30, I94I, is reversed ^ toto and the cause is remanded 
with directions to the trial court to sustain the motion t© 
strike, to allow defendant to file an amended motion If he so 
desires, and for further proceedings not inconsistent idth 
this opinion, 



Sullivan, f, J,, and Priend, J., concur. 

-eifg evail ^XiJ«)fia .tixroo 

OS 9Xi -it ml^o& bBbnm^ a^ SJ.1 

;■ i iV i J. %>»*» * ■^ *- 





RUDOLPH LUcS§lf^^«liia,^gs^ 

^^"' Appellants, 




Consolidated Under/Case 
Ko. 39 S mf31 


Appellee . 

John Wsrllk and Rose V/erlik, his wife, filed a suit 
against defendant in the Superior court of Cook county for 
personal injuries and property damages sustained by them as 
the result of an automobile accident, alleging that the acci- 
dent was caused by defendant's negligence. Two other persons, 
Rudolph Lucksinger and Tillie Lucksinger, his wife, were riding 
in the V/erlik car. Thsy filed a suit against defendant in the 
Circuit court of Cook county. The two cases were consolidated 
and tried in the Superior court^ before the court and a Jury, 
A verdict of not guilty was rendered as to each plaintiff's 
claim. Motions fcr a new trial were overruled and a single 
judgment was entered on the four verdicts. All of the plain- 
tiffs appeal. 

On September 10, 1939, about 8 p« m,, plaintiffs were 
driving from Starved Rock, Illinois, back to Chicago, their 
home, on Highway 34, in a new Dodge ear owned by Mrs, Werlik, 
Mr, Werlik was driving the car and Mr, Lucksinger was sitting 
next to him. Mrs. Werlik and Mrs. Lucksinger sat in the back 
seat. As they were approaciiing a curre in the road defendant 
Murray drove his car into the cuTTe from the opposite direction. 
Defendant was driving a Packard car, Tht^re was a crash and the 
plaintiffs' car was driven into the ditch, where it was found 
lying upon its side. Defendant's car remained upon the highway. 
Plaintiffs' theory of fact was that at the time of the accidmt 

o ^ 



(jj aiJuix 

• _1-. .;,.,.. ..00 2000 '50 ; , ,v 

"Xf^4& a ^ *<3^ .9©XXSQr 


sXsnX. a bn^ b^Xnu.evo .a.v X.liu wen « ^ol 

., , ... . , ^.... .Ti^rol ericr £10 £>eie:tn9 saw inefflgbirt 
-Gislq 9fi;t lo XXA .- ■ 

.Xissqqs a^llJ 

G 4„^..f-, p,cpl .OX •st.dKf^JqsS iiO 

;„,«.e ..» .e^X^^o"-! .,M ... «o e.* ^v.,. .- -H«. .« 
.0.. ... n. .ae «sn.e^-^ -^ ^"'^ ''"•"^^ •'* •-" "^ !'" 

«.*, pt kiAbasl^^G .sfele a:ti floqw jxilxX 


defendant was driving his car in the wrong lane at a speed of 
seventy miles an hour and that he drove his car head-on into the 
side of the car operated by iip, ?/erlik. The theory of defendant 
was that he was driving on the right side of the road at about 
twenty-five lailes an hour; that the car driven \iy Werlik was on 
the wrong side of the road at the time of the accident and was 
being driven around the curve at a speed in excess of forty miles 
an houri that defendant applied his brakes as soon as he saw that 
plaintiff was on the wrong side of the road and that the negligence 
of Werlik was alone responsible fop the accident. 

When the motions for a new trial were called the trial court 
refused to allow plaintiffs' counsel to be heard upon the motions 
and stated to counsel that he was on his "way to Michigan Avenue," 

Plaintiffs strenuously contend that the verdicts of the jury 
are contrary to the manifest weight of the evidence. After a 
painstaking examination of the entire evidence that bears upon 
the instant contention, we are convinced that the contention is 
a meritorious one. As ve read the record, it would amount to 
a miscarriage af justice to permit the judgment to stand. In our 
opinion the ability and adroitness of defendant's counsel unduly 
Influenced the Jury in reaching its verdicts. As the cases will 
in fill probability be tried again we r'afrain from comnienting upon, 
the evidence. 

The judgment of the Superior court of Cook county Is reversed 

and the consolidated cases are remanded for a new trial, 


Sullivan, P, J,, and Friend, J,, concur. 


sxlJ" oj-nl co-L)iiafi nBO sM svo^fc srl i&dj fens oyer* -^ ^«Ilffi x^asvsa 
z^jiotJs ^s bBOi bjH lo ©clB vtfisli eai) no §civii£> eisw si! iarid- aaw 

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:f9dJ WB2 «d 2^ «ooa ae aei^Bircf aid £©J:Iqqs ^/tB&*f ■ " " '■ ftrii \iDod us 

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^" . r-misvA flBglrlolM ct xsW airf no 8si^ si- Ji.uuj Isafljaco o;j be^fsJe £c[a 

aoqjj ziBBii d'Biicr aonsfciv© sitj:;}'/!' " "^o not&antmsx9 gnl^sctanlBq 

ijuo rtl .cxi;3o£ OCT drr^sssfeigt ®ri;t ilianzq dd' aoWeiit lo ©^BliiaoeliH £ 
xU^btw XseiTjuoo £'\;ii«l>w9^9l> ^o aasfd-lioifca fenis ^cMXlcfs edj- nolalqo 
XXiw a©B30 9xid^ eA .Ej-oXbiS'V Siil saldoastt ax xiJ!?t -^^ fc^onsuX'tnl 

noqi? ^ttic^nstiaBioo ££0^1 nlsi^i ®w jsljf^'aia bsliJ 9€f x«^iXlcf6doiq XXs al 

^Xjftlid' wsa B ^©1 bfbfWJB^rr sib essso f:'sjfi£!iloanoo srW- fitos 

GET.-' ""■■ '^ "" *• 




Ho&rk^ hep-slaaftcr call«d appeiliiat, la »Meh afe® alX9|^4i 
that te iMd b«si» gailty of cmislty aEbi iha prayed far a 
divorce, for all^o£Qr« «tc. Appellant «as repre seated la 
the dlTcrs* proe#Qdlnj;s by Attorasy '-«3r«r H. Goldstsla, 
«ho filed appellant's a&avttr te th« eo&iplsdat* A itlpulatloii 
was than slpie4 ^ tilt attomtja for both parties ''that tha 
abora aatltlad o&osa b« sat 4o«ft tor li&#rl&s Qn Ccmplalat aad 
iaawar as in c&sa of defaolt*** Ti^ casa oana (m f«r haariag 
befora Jndfa Flnaegaa on Ostcb^r 1, 1937» apr^llAat balxtg 
rapresantad bj his said attarnay* >•» tha t?aasdrlpt of tha 
avldsBsa it appaart that tha pa^tias asra«d in ops^n ooort that 
tha hoaaahold goods and rurnltar«? should b« th^ |»rop«rty of 
appallaa and that appellant should u&/ bar $5»^''^ ^i^aldy as 
allBeojr, and CI50 for h«r attorney's faes, a d«.rt» of dlvoreo 
eras than antarad, «Mah eoataln&d, ^fitgj f iJJLl^ tha f&llowiags 
«It Is fttrthsr Srdarad, Adjudgad and Daeraad that tbA dafaadant 
pay to tha pl&lfitlff, as and for si^^port afid :&&l&td^inse, tha 
mm of PlTo Dollars and Fifty aants aaoh aaak, b«eijaEdJis iA» 
stantftr aod ttntll tha farther ordar of this 90urt«" OMar 
thla provision of the deoraa &pp9llaat paid |>5*50 p^v aaak 
aliaoay for thraa yaars. tha dger^o wta ^aprafyad ty>aa Its 
ftti ter ^ >^^?rnfyft f9r ^^Xk wr^iU* ^ ^abmary 28, 1941» 
a93^11aat« by KlUa & Wastbroofcs, his attorasys, filed a "Fatl- 
tion for /.odlf lo^ tlon of tha Dearaa of Divorca Haratofora 



-i©'' t^im -i* ..- t^' w»*.i^ 

:0!. «syjt^ to «r» 


edi JO m>i aoU 

loitered. " Iha p#tltida allsgaa^ Ifi^f il^iA* ^^^^ «f9«iIl&Eii*s 
elretautajoefts aad ee^ltXcaia J3yatr« chauagvd aail that ^ 1.^ sc 
loaga? aiils to a^splj wit^ tbe alijaoay ora«$r 'ninXeas hs Mjits^llf 
i« to ba ddpfi?^ of tli^ neeaasltlda of life aM 1^ 1»« j^t to 
gr#&t har4sliip «fisi lii^^iiraai^asdi'* t^t ^^le al?eia»t&as«!i and 
eomiltioas of app#Ild« ^v# o^uaig»d aliie# t^^ «9ttt77 «f tb» 
d^er^d dXki Umt sios ia bo Xoagsr In £i^«d of tSrn SkM&i&tasatf sad 
^JLp of app^U&at* Hm pstiXXan farUiar aXIOfos tJiat appolloa^ 
thirooch ^r atuoraoy^ r9preseat«d to th$ ac^art at th» tSa» of 
tli« trlaX of ttas dlToroe proo«$diJ3cs that app«lla&t liad 9at«r«d 
late aa agro^Mat with h&r br i^hich tais proslsod or agr*»ad to 
pajr h«r Use ^iwi of #5*5^ ''of l3@3r support &jkd ffi»iiit@jiaaeo aad 
t^t Uw eoort «ater«d the alimony ordor ttjpem s&id raproaoatatioa 
but that H^peXlaJoX did not @ntdr into sraah ugf^^munt aad did a0t 
icBOv that ttw ord«r «aa incorporatstd into th» di»er®t mitll his 
attornex iictifi(;d hia after tha caso waa heard. 7h« pi@titioBftr 
px'&yed that Uw alinoasr ordar bo vaoatad, or la tha alt«^raatlir« 
bo aodlTiod. c^ppollaa fllad aa aaawev to the p^titioa in «hloh 
aim allsgddf intar alia^ ihat tha ordor for 4$m^<^ P^r waoic t'Br 
aliaoay sh.^ ttaUr«kl "with tha oouaant aad r«eo«i«adatloa of 
ooooa^l thaa ap^^tarlag for thd potitiooar.'* the aaawar furthtr 
ail9C«d that QQ two pridvloas occasions^ »i^ 24, X939# »^ <7^>>*^ 
X5# 19i9« appQlIoat had raqacst^d Jud£«i Innefian to r^duee or 
■odify the alliaoay order but that his petition «&« r^Tvamd upoa 
•aeh oeo&sioa; ihat app^IIaat lata thrQ&toa^d ihat aaX«<sa iho 
agro^od to siodify th« aliaoa/ order or accept & Im&p stxsi listtle* 
»«at "aha woald nev^r got aay laouey from hla r^s^al&rXy aaS «hat 
Ilttl'^ she would raeeivo would b^ at such tlssBa h« voald aot 
panait tha rospimdeat to aalti^ fulleat us« of aueh surBSf" that 
•ha baa baaa oonpallad harotoforo to obtala a rula upoa appollaat 
to shov oaaso ahj h» ihould not b« hold in coaton^t b<$foro aha 
a aa—ado d la ooq^lllBg appcllaat to oboy tha ord€ of tha court 
aa to aUaoay* Appollaa danlad that sho ha.% aa inecini>^ auffloiaat 

c m'z. jv.= 

' ^dMi afilsi. .>»^"ii 


-.. 6*^Seb.: 

^X^>*»k^ mi ^: 



14SJI )I9& 


£il« f'; 


Jb iml3 

be^%$a^ ^:?f! f^^^i-:. 


bOM »at.?ain:?ai r 

al^ailni^. ::t.-^^ 


im tr. 



■^dt &1^ni t^^i -'T.^vtot..' 



>^i« ««fi %»d xnq 

in.ii£*i^»i Sjui3 tad 
i «i4^ Ssda woasi 

to sustain hBT fdthoat tl»» h^Xp of Appellant* Sl» petiticn caa9 
Oft for aaarlxii b'ifor^ Jodga H^rrlngtoa^ ^o h«&rd th«i t«stisiair 
eff^r«£ b7 both pirtios ani eatarsd fm ord^r r^duaiag Vm aliiuaQr 
to fir? dollars a week* .^ppellASt apj^als fron that ordl«r* 

Ajppdllaiit eoateadt that '^tlii prevlsioa in th® d^erea for 
I»er»a»iat alls<»^ stumld not )usv» b«$& <tnt^r#d, is (^rreaecRis aai 
void anl should b« r«v«r9ad by this Coart for ttw f olXoviisg 
roasoBat** (a) Sm oosiplaint for divorea did i»t prsqr spir$elfl«» 
eally for paraaasnt »li&ofiy and ti»ra is bo g«ii»ral prater for 
r«ll«f« and tfeMrefore tha coitrt that haard ttks divorea proo9@d-> 
iBfs had ao Jurlsdletioa to grant allaoBjr, (b) l%a proof 
ksard did not support tha ardar for allsoii7« (a) AppoXlaat 
did Bat agraa to tlw paraamint alinony ull&mdf audi tha o^irt 
iras ladiioed to b«ll«T9 that iat did so afrae^ and Uaarefov^ t^ra 
aas a Blsrapr«aaBtatio& praetlOAd upoB th« eoort. (d) iMtts of 
aondenstlOA appaar in the e«»rtlfleate of erldanea. (a) Appallant 
tttrr«iidarad his right to ooatost the dlToree suit althoat any eoa- 
sldamtion, he paid the aosts of the salt and appallaa's soil- 
eit«r*s faaSf and ha oontrlbatad to appallaa*t si^port for about 
four years slaea the entry of the daaraa, and therefore the par* 
aaaaat allaaor prorision in the daerae shotild ba faeatad* 
Appellant *s eooasel hava aaaa fit to treat tha instant appaal 
as thaagh It wmm an appaal frca tha original ^mer^^i tiwy hafa 
also treated the instant notion as though It W9r9 a pleading In 
tha natara of a bill of rairlaw* lib notion aaa nada althln thlrtr 
days after the entry of the dlvoraa ii»9r9% to fmaata or modify 
tha sane and tha trial eoart was poaerless to ohanga the pro<rl«* 
siona in tha daerae as to alimony unless by agra<^i»nt of tha par- 
ties or tinleas oyae of the p&rtles filed a petition setting ^ 
that there had bean a change in the eonditloas of the parties 
sabseqaant to ti» entry of the d^ier^tal order, (^eslyn v, Jiisly% 
315 I1I« App. l6Qf 177» 178.) Oth^r e^^sas to th@ sane «ffeat 
night ba elied If It were aeaessary, ThaFafora^ upcm tiM 

h»&rlB|C of thf» iaslast petltica* tb0 trial aoart ccmld ouljr 
vaeat« or<iify tljs d«er«t&l ©rtiesr fer aXistfioaT' upc-n dsm 
showing of eimngsd cir<mssstfeBe«» of mm op beth ©f tl» ^trti6»4 
The only qu«stlcii b^?fcr« xks 1», Was the or^ar entwir'f'd by tJto 
trial court Justified \xsKi»r th» ertdeaee? Afttr & ear^fal 
resding of tl» «vld@fie« b«arlnf upon tasw <|iii«stloii w» ar« 
«&tisfi9d tbat app^^Ilaat has no just grcoxsds te co«pl&iii of 
ttfl> ordar antarad by th<» trial ccnsrt* 

Appallaa has ssada a aotlon la this court %& dlaBslss 
thm appaal^ ^hloh aotl^n wss rns^rr^td to hearlac, fha notion 
Is daalad* 

Iha Instant appeal i» without tha sllghtaat marlt aaA 
tha j.rrier of th« Circuit ecmrt of Cock county la «fflr»»d, 

Salllvajif p« J,, aal Frlaod^ J., coasur* 

n'WUSOQ I » '■> i** 

i«?a'«'? ^ 








) APPEAL Pkfij/sUPERld^, COOPI ,. 

/ OP COOK caaNTY^~"-y^ 


Edward J, Clancy, filed a complaint for divorce against 
Phyllis M, Clancy on grounds of desertion. She filed a cross- 
complaint for separate maintenance. The trial Judge dismissed 
plaintiff's complaint and awarded cross-plaintiff a decree for 
separate maintenance, also granted her custody of the minor child 
of the parties, and awarded her support money and attorney's fees. 
Plaintiff appeals. 

Plaintiff's complaint alleges that cross-plaintiff wilfully 
deserted him, without reasonable cause, on April 30, 1939 » Her 
answer denies that she wilfully deserted plaintiff without any 
reasonable cause, and denies that plaintiff is entitled to relief^ 
Cross-plaintiff's counterclaim alleges, inter alia t 
"4« That during the time she and plaintiff cohabited as 
husband and wife, she faithfully discharged all her duties as such 
wife, and at all times treated plaintiff with kijadness and for- 
bearance, but plaintiff, a few months after said marriage, commenced 
a covirse of unkind, cruel and inhuman conduct toward her, which 
continued until she finally separated from him on, to-wit, April 
30, 1939> since which time she has lived separate and apart frcn 

"5. That plaintiff is a man of violent passion and ungovern- 
able temper, that on many occasions, he addressed to her the most 
opprobrious epithets and threats of personal violence, and has re- 
peatedly threatened to take her life, as more particularly hereinr- 
after set forth, that shortly after said marriage, plaintiff 



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besBlmBlh ©gfii/t IbIt:' ' .eoasn&SnlBm ad-iJisqea 10^ Jriislqjiioo 
lol Bsto^b B IlicfiLtalq-geo'io fesfeisws bflB cfnlslqaioo e » llWnJtBlq 

.89sl 8*^9xn:o:}^a £i£is "^a/ioffi (tioqqxfa leri fisMjswa fefsiB ^&&l:jizq sdi to 

,8ls©qqB I'iid-nlBll 

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i aiXc ig^tnl ^aos!?!!,^ alsl oie;f aitfoo 8*Trllcffllj3lq~2aoiO 

ss £)9;tJtcrfiXioo lIlcfaiBlq fass ejrfe ©iHii;t exld^ gjil-ixif) :t«iT p^** 

doua as aoictufj lan lis b&-giBds>8,lb xllutditBl eris tSllw baB baadBssd 

-loT: bnc sgaafoobi ditn lllial&lq beSssiS sealJ lis &a bae ^ellvr 

rloijlv; ,ieri bi&voi ioubaoo ahwiriiat ha& Isr/io ^bnxjLTjc; lo ezoixoo s 
Iliql ^o'xw-oj ^no Eitri Broil bsctsi-aqsa xXXfinll ©fis XX^air fceirnl .tjjoo 
isoil iiBq& bas ©laisqse bsvll Ejsri sirie a«tl^ risJtriw oonla ^^£^X ^0£ 

-nievosxm baa aolesBq c^nsXclv to xuib b il tllJ^fllsXq J-ariT ,^" 

:faoci ©jrfj- i®ri oi Jbsaeo'xbbs srI ^anolaBooo yjtBm no i&di ^isqmei elda 

-*3i Bart bjoje ,»aaoIoXv Xfinoaisq lo BiB^uit ba& Ed-sfWlqs ajrojticfoiqqo 

•^iQiBd xli&liiotiiBq 9iom as ^ellX lari 9^fi;J^ ocf SsnaJ-aenrict xXbe^tasq 

llld^niBXq ^egfiliijem filse i9;t1* -^XjioxIb i^A^ ^liiiol. iai i»*t« 

coEffienced the excessive use of Intoxicating liquors, that he has 
been on sprees and remained in an intoxicated condition for a long 
period of time, that while he is thus intoxicated he is very 
quarrelsome and ill-treats his family, using abusive language, 
and in consequence of the cruel and inhuman treatment and threats 
aforesaid, and such conduct as to render it unsafe for her to live 
with or remain near him, she was obliged on April 30* 1939* to 
leave the house of plaintiff, and since which time she has not 
dared to return to plaintiff's house, or live with him, 

"6, That more particularly in April 1933* shortly after 
Phyllis Mary was bom, plaintiff came home in an intoxicated con- 
dition, and threatened to take the said Phyllis Mary away with 
him, that he used the most obscene and abusive language, and only 
when It appeared to plaintiff that the police would be called did 
he desist In his said threat, 

"7« That in the months of October and November, 1935* 
immediately prior to the birth of their said daughter, Carol, 
plaintiff would follow defendant about the house, smashing dishes 
at her feet, and as a result several pieces of said dishes cut her 
about the face and body, and because of her physical condition her 
health was greatly impaired. 

"8. That immediately following the birth of their said 
daughter, Carol, in January I936, plaintiff remained in an intoxi- 
cated condition almost continuously, that while so intoxicated, 
he became and was very quarrelsome, using abusive language and 
rendering defendant's condition Intolerable, and her life burdens- 

••9» That on Christmas eve of 1937* plaintiff came home 
in an intoxicated condition, and used obscene and abusive language 
and then left their home, and did not return until the following 


"10, That on several occasions in the year 1938, plaintiff 

.-h-' r^nw evil 'lo't^sr ft-iKfe^^B* fe©^«6 

.... .,r^ .. ..H r.rr<n.r .-.^^, T -.i:> ^.%i'J mini '>'^'n-"!Cfs *i rx&dw 

baB e^Bii^cua evUudB ^Izti ^^o^l9t'Uiap ^^«v sew bflfi sofiosd ed 
^oj^iirj sliX led £nii ,9XtJBieXo:titl noiJXbnoc. .' ■^"^.^r-.'>'.^ -^nti.Dnei 

sniwoXXol tri^X-t^^I, inii:re^ r^'-- '■-- .— ' ""-^^-^ ^'^'^■^ «^^^ ^* 
llWxtlsXq t8£^X rts©^ sifj fii enoiasooo Xsiisv&c no im'^ ,uX'' 


followed defendant about the house with a gun, his practice being 
that he would sit doim in the room defendant was in, and lay the 
gun along side of him in an exposed condition, and when defendant 
left said room plaintiff would follow her into the room she then 
occupied and go through the same procedure, 

"11, That in the month of July or August 1938, plaintiff 
while in an intoxicated condition forced defendant, and their oldest 
child, Phyllis Mary in the night time to leave the house of plain- 
tiff and locked all of the doors, so that she was unable to rettirn 
to his house, that It was necessary for her to go to the home of 
her father and remain there for the night, 

••12. That in September 1938, plaintiff came hoae in an i]>« 
toxicated condition and threatened to commit suicide, and In further- 
ance of said threat, locked himself in his automobile, closing all 
of the windows, and it became necessary to call the fire department 
to prevent him from carrying out his said threat, 

"13, That on October 3, 1938, in the evening while in an 
intoxicated condition, plaintiff pulled a gun from his pocket and 
pointed it at defendant, and threatened to kill her, that he returned 
the gun to his pocket and left the house, and failed to return for 
the balance of the night, that in consequence of such cruel and in- 
human treatment and threats aforesaid and such conduct as to render 
it unsafe for her to live with or remain near plaintiff, she was 
obliged, on said October 3, 1938, to leave the house of defendant} 
that on October 5> 1938, plaintiff came to the house and moved his 
clothing and other belongings, and made his abode elsewhere, and 
thereupon defendant returned to his house, and made her abode, 

"14, That on November 4, 1938, their said child, Carol, 
died and plaintiff moved his belongings back to the house where he 
continued to live until April 30, I939. 

"I5. That on April 30, 1939, defendant was obliged to leave 
the house of plaintiff, and seek refuge elsewhere, since which time 

•3ffi^ -^sl t-tiB ^aJL ssw oiife£i£i&lci- iiiu '2 Jblwow ori ;Jjbc(^ 

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tM-^ti: ad> -rado ixla(E®*£ bus iscWst nsri 

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ns Gi rlinw sniusv© ©ri;:^ ni %8£«X ^£ tedocfoO no ^^iriT »£X" 

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^IoibO ^hlldo bl&z iledi ^8£^X ^> ir-^dfisvoH ao ;^adS ,M" 

9fl eiQxiw sewori eil^f oi io&d asnlgnolacf sW bsvom lll:^fliflXq fcas ftelb 

,^?X ^0£ XXitqA XXctiitr ©vlX o;/ fesjtaiidiioo 
»V3©X G;t besiitfo taw cfnsfiiislei) ^^£^1 ^0£ XXttqA ao :fjariT ,^X" 
Bmli dtthw stalst ^sTC^stl* ssiitsn; 2[es8 fine ^lIlctnlAXq lo esjjorl ed;t 

she has not dared to return to defendant's house, or live with 

The amended answer of plaintiff to the counterclaim denies 
the charges alleged in the counterclala and alleges "that the de- 
fendant resided with and cohabited with this plaintiff from Noveiaber, 
1938 until /pril 30, 1939, and the alleged offenses charged by the 
defendant against this plaintiff were all fully condoned," 

Plaintiff claims that "the defendant left the plaintiff 
with no valid reason for doing so, but merely toecaase she ceased 
to loye him. Plaintiff was a devoted husband and father^ and was 
not guilty of the misconduct charged against him by the defendant. 
If he had been guilty of any misconduct, it v&s condoned by the 
defendant resuming marital cohabitation with him after the last 
act charged against the plaintiff. He had always been a good hus- 
band, but after the resumption of marital relations on November 4, 
1938 he was an exemplary husband, '^"hen the defendant left him 
April 30, 1939, he offered to go back to her over a hundred times* 
It was her duty to accept this offer." Plaintiff contends that the 
decree is against the manifest weight of the evidence, that the court 
erred in not finding that he was entitled to relief under his conir' 
plaint, and further erred in finding for eross-plaintiff upon her 

Cross-plaintiff claims that plaintiff was a hard drinking man 
and was very often under the influence of liquorj that when he was in 
that condition he was not a kind and affectionate husband but was 
abusive and quarrelsome and made her life miserable and intolerable 
by acts of cruelty; that his offenses were not condoned by her, but 
chat even if they were, his subsequent conduct revoked the condonation; 
that she was fully Justified in leaving plaintiff and tliat she is 
living separate from plaintiff without fault on her part. Cross-plain- 
tiff contends that the decree is fully supported by the evidence. 

The parties were married January 30, I932, and lived together 

diti! svlX 10 ^fte/joxl &^ :jasba^X0b oS aTSisi o;J b6%£Jb ^on aari sria 

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-?- I 

until April 3O1 1939» "^wo children were born to them, Phyllis, Ulary 
and Carol, Carol died November 4-, 1938, Plaintiff has been a. 
policeman for fourteen years. At the time of the trial he -was 
thirty-six years of age. 

This case was tried by an able, careful and conscientious 
judge. After the trial court had denied plaintiff relief and had 
granted relief to the cross-plaintiff, counsel for plaintiff asked 
the court if he made any special finding of intoxication against 
plaintiff, and the court responded that he Bade no special finding 
that plaintiff was "an habitual drunkard and intoxicated person," 
As we understand the court's position he was of the opinion that 
acts of plaintiff, aside from his drliiking habits, warranted cross- 
plaintiff in leaving him, and therefore it was not necessary for 
the court to hold that plaintiff was an habitual drunkard. Counsel 
for plaintiff emphasizes this statement of the court and even goes 
so far as to state that it was a finding by the trial court that 
plaintiff was not guilty of intoxication during the time that he 
lived with his wlfe« The court did not, and could not^ under the 
evidence, make such a finding. As we r«ad the record plaintiff 
constantly drank excessively, and this habit was the primary cause 
in bringing about a separation of the parties. Cross-plaintiff 
testified that her husband "was all right when he was sober," and 
we are of the opinion that plaintiff, sober, is a decent man and 
an affectionate husband, and that the acts cross-plaintiff charges 
against him were due to his overindiilgence in liquor. The testi- 
mony for cross-plaintiff, some of which we do not refer to, tends 
strongly to prove that plaintiff was an habitual drunkard, lliile 
plaintiff and his witnesses testified that he was never intoxicated, 
nevertheless, their testimony also shows that he was a steady drink- 
er, who "carried his liquor well," The testimony of Austin E, Regan, 

an old friend of plaintiff and a witness for him, throws considerable 
light upon the instant subject. Mr, Regan often drank with plaintiff < 

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H« testified that as long as he had imown plaintiff the latter 
had been a drinking manj that in his opinion plaintiff "could hold 
his liquor J " that in all their drinking together he had never seen 
plaintiff arrive at a point where he could not hold his liquor; 
that he had never seen him stagger j that he never saw him intoxi- 
cated "according to 37 understanding of the termj" that Mien plain- 
tiff? was drinking beer the witness had seen him drink as many as 
twenty glasses; that if plaintiff was drinking whiskey he had seen 
Mm drink as many as eight glasses; that witness also had "drunk 
that many glasses,** 

It would unduly lengthen th5s opinion to refer to all of 
oross-plaintiff 's testimony in regard to plaintiff *s drinking 
habits. We will refer to the principal incidents of which she 
complains: She testified that in October or November, 1935* 
immediately prior to the birth of Carol, she was under a doctor's 
care; that she was visiting her mother; that plaintiff was to come 
there for dinner but that he did not show up and they had dinner 
without him; that plaintiff came there at eight or nine o'clock; 
that somebody drove him there; that "he was very drunk. He could- 
n't walk straight;" that she met him at the door and they got into 
their car and she drove It; that when they reached 8lst and Halsted 
streets on the way home he wanted to get out and get some cigarettes; 
that as there was a tavern near there that he visited quite frequent- 
ly she got out of the oar and went to the drug store and got cigar- 
ettes; that when they reached home her husband discovered that the 
cigarettes were not cork tipped and he started arguing, quarreling 
and calling her all kinds of names; that she was pregnant at the 
time and got very excited; that "he went into the pantry, got same 
dishes and followed me into the bedroom throwing the dishes on the 
floor. The pieces flew up, hit me in the face. Then I went to the 

telephone, called my mother and asked her to please come out and get 
me;" that her mother came, and told plaintiff that it was very wrong 

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for him to act that way because of his wife's condition and that she 
thought it 7/ould be best for cross-plaintiff and Pliyllis Mary to go 
home with her} that cross-pleintiff then wont to her father's hoae 
and stayed there for five days; that when ths dishes fell the chips 
went up in the air and hit her in the face and she was bruised, but 
that she was ashamed to show them to anybody; that when she went to 
her father's home she was in bed two days with a terrific headache 
from the bruises and was under the doctor's care as she was carrying 
her child at the time. The witness further testified that plaintiff 
telephoned her and asked her to meet him do^^ntown, that he wanted her 
to come back to himj that she told him she could not live with hirq 
because of the way he was carrying on v.'ith his drink; that her life 
was in danger; that he then promised to take the pledge and they went 
to St. Peter's church, where he took the pledge not to drink for a 
year; that he drank again in less than two weeks' time; that Carol 
was born in January, 1936; that in the spring Carol was very sick 
and upon one occasion cross-plaintiff stayed up most of the night 
with her; that plaintiff did not come home that night although he 
was working days at that time; that plaintiff, when he reached his 
home, fell asleep in the car; that the man across the street rang the 
door bell to tell her he was out there in the car; that she went out 
and tried to get him upstairs; that his sister, Elizabeth Clancy, 
came along to see how the baby was and found plaintiff in the car 
with the lights lit and the engine running; that it was then about 
eight o'clock in the morning. It is significant that while plains- 
tiff called his sister Elizabeth to testify that he had lived separate 
and apart from cross-plaintiff for a period of one year Immediately 
preceding the filing of his complaint, she was not interrogated la 
reference tc the last mentioned incident, nor was she asked any 
questions as to plaintiff's drinking liablts. Cross-plaintiff furtlier 
testified that on Christmas eve, 1937, p3-aintiff failed to come home 
to put up the Christmas tree and that she and the Regans put up the 

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tree; tliat when plaintiff finally came home he was in an intoxicated 
condition and was carrying eight or ten piesj thst when she asked 
him ^^r<5 he had been he got very angry and started to swearj that 
he dumped the pies down, went out, and did not return until about 
7:30 or 8 o'clock Christmas morningj that she stayed up all night. 
The witness further testified that in the sumf:;er of I938 plaintiff 
came home at ten or eleven o'clock in an intoxicated condition and 
started to argue and he followed her around the house with a gun| 
that if she was in the living room he would sit down in that room 
with the gun lying on a table that was alongside of hlm| that if she 
went into the kitchen he would follow her there; that he knew that 
she was "deathly afraid of the gun;'* that she picked up the gun and 
hid itj that plaintiff looked all over the place for the gun and then 
started another argument and asked her where the gun wasj that he 
talked so loudly that Phyllis Mary woke up and called for her mother} 
that she and Piiyllis Mary ran into the hallway &nd plaintiff slammed 
the door and locked them outj that she and the child got into the car 
and she drove to the home of plaintiff's sister, where she left 
Phyllis Maryj that she then went back to her home and sat in the car 
outside of the houfiej that she tried to get into the house several 
times but was unable to do so, so she drove to her father's home 
and he telephoned ¥r. Baker, plaintiff's brother-in-law, and she 
and her mother drove to 55th street, where they met Mr. Baker, who 
was a policeman, and they rent to the home of the parties and lir. 
Baker tried to get in at the front door, but could not; that he banged 
on the doors and knocked on the windows but was unable to awaken 
plaintiff J that the lights were lit in the house and the front windows 
were open; that she then went to her parents' hom-s and in the morning 
she went to her own home, rang the door bell, and plaintiff let her 
in| that he said he was very sopry for what had happened} that during 
the entire time that she was locked out Carol, the baby, was in the 
house. The witness furth(^r testified that In September, 1933, plali>. 

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tiff Rasie home intoxicated and threatened to commit suicide; that 
he went out to where the car v&s parked in front of the house, got 
into the car, closed the i^pindo^ys, locked the doors, and started the 
motor; that she got sxcited and called the fire department and that 
it was so long in coming that she ran to the man upstairs and told 
him what had happened and in the meantime the fire department camej 
that plaintiff saw them coming and got out of the carj that the 
firemen came into the house, and while they were using the telephone 
plaintiff said to her, "You think 70a are so smart* I will show you, 
calling the Fire Department, I wjll take the car, have a collision, 
a smash-up, smash the car and get killed, and It ^^11 appear as an 
accident;" that that evening plaintiff became very angry because the 
car would not go over five miles an hour and said that he "was going 
into the bedroom and blow his brains out and I cotild clean up the 
mess," The witness further testified that in October, 1938, Mrs, 
Regan and her daughter Katherine were at the home, and plaintiff, 
who had been drinking, came home and while she was sitting on the 
couch plaintiff "pulled a gun," and the Regans ran out of the house; 
that a few minutes later the Regans came back and Mrs, Regan said to 
plaintiff that Sb9 v;as surprised that he would do anything like that^ 
to which he answered, "You know I v;ouldnH do anything like that;" 
ttiat shortly afterward he left the house and did not come back until 
the following raorning; that she took her baby and v/ent to the Hayes 
hotel, leaving Hiyllls Mary with the Regans; that two days later, 
at the request of plaintiff, she went home and had a conversation 
with him; that she tvld him that her life was in danger because of 
the way he was acting and that it was impossible for her to live 
with him; that if he wanted to stay in the apartment she would have 
to go to some other place; that he said he would take his things 
away, which he did, and he went to his sister's, and cross-plaintiff 
returned to the apartment; that her husband remained away from the 
apartment until Carol died, on November 4; that while Carol "was 

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being waked" he moved his tilings back into the apartment and stayed 
there until April 30; that between November 4 and April 3^ he con- 
tinued to drink] that the lease isras up at that time and she told 
him that "it was impossible to livo that ^say" and that she isas going 
to get an apartaent for herself and Phyllis Maryj that plaintiff 
said that his sisters Tainted to know what ho \vas going to do because 
they were going to rent a smaller apartment if he was not going to 
live with them, that he would give $75 a month for the support of 
herseir and Phyllis Maryj that she moved on April 30j that just 
before that day he told her that be had rented an apartment and 
was moving the furniture in thsre, tiiat "I have a home thercs for 
you. If you don't go to it you are out of luck;" that plaintiff 
than h.-j.d liquor in him. Upon cross-examination the wJctness testi- 
fied that her husband struck her upon two occasions, the first time 
when they were living at 1739 80th street and the second time when 
they T7ere living at 75th and Carpenter streets, which w?ls shortly 
before they separated the first time, in the summer of 1937* In 
response to a question put to cross-plaintiff by the court she 
testified! "Right after my daughter died, in fact, the day slie 
was burled, my other littlt girl came down - ith pneumonia. She 
was very, very ill. Q. ^Then was this? A, My daughter was buried 
on the seventh of November, seventh or eighth, luid that night Phyllis 
Mary cane down with pneumonia. The doctor had to be called. I took 
eare of that child, didn't h^ive !ny clothes off for a week. It was 
either two or three nights after she was taken sick, nine or nine- 
thirty, Mr. Clancy said he was going for cigarettes and a glass of 
beer, H'^ went cut, left me with that child sick and never came back 
until the next morning, seven-thirty, I asked him where he had been. 
He said, »I was out having innocent fun. Certainly a man is entitled 
to that."* 

As to the disb«4)reaking incid-^nt, plaintiff testified that 
he and his wife "had a heavy argument;" that his wife told him that 


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he was the type of person that would break the dishes and that he 
said to her, "Why don't you dare me to," and that he broke them 
"to accommodate herj" that she was net cut or bruised as a result 
of the incidentj that he was not drunk at the time but that he had 
had "soE.'^thing to drinl:" and that he took two drinks after he got 
homei that his wife was pregnant at the time and was "pretty sore" 
about being in that condition. As to the pledge incident, plaintiff 
testified tliat he agreed with his wife that it would be a good idea 
if he stopped drinking liquor and stayed on beerj that he promised 
her to stop drinking hard liquor; that they went to St, Peter's 
church and he took the pledge "to abstain from drinking hard liquorj" 
that it is not a fact that he did not keep that pledge. We find no 
specific denial by plaintiff of cross-plaintiff's testimony that in 
the spring ©f 193^ it was necessary for her to stay up all night 
with the sick clilld, Csirol, and that her husband did not come home 
tbat night. As to the Christmas eve, 1937, incident, plaintiff testified 
that he did not come home in an intoxicated condition, but that he did 
bring home eight piesj that two were for the Regans, two for his own 
home, and four for his sistersj that there was nothing unusual about 
his bringing home pies; that his wife did not stay up all night aiKl 
wait for him; that he came home shortly before midnight but his wife 
would not let him in and he went down to the basement and slept there} 
that his wife had the chain and bolt on the door so that he could not 
use his key to get into the home; that his wife knev that he went 
down in the basement and had to sleep on a chair. As to the gun ill- 
cidsnt in the suicEier of 19 38, plaintiff denied is toto the testimony 
of cross— plaintiff as to that incident. He further denied that in the 
month of July or August, 1938, he forced his wife and Phyllis Mary 
to leave the house in the night time and locked them out. He test!** 
fled that on one occasion he pulled his gun out of the holster and 
offered it to his wife "to shoot me because she said she was leaving 
ne." Mrs. Katherlne Regan, a witness for plaintiff, testified that 

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upon one occasion plaintiff and cross-plaintiff ha.6. an argiiment 
and plaintiff "drew a gun and offered it to her to kill himj" 
that he said, "If you are going to leave me, I don't want to live|" 
that her daughter Katharine v/as with her at the time and when plain- 
ti-^f drew the gun and offered it to cross-plaintiff to kill him they 
got frightened and left; that afterward plaintiff said to her, "You 
never saw me draw a g^m," to which she answered, "Yes you did draw 
a gun." As to the fire department incident plaintiff testified that 
he never went into the ofar on the street and locked the doors and 
threatened to commit suicide by carbon monoxide gas| that the fire 
department came to the house in March of the same yearj that he does 
not know why they cajnej that the firemen said, "'//hat is wrong here? 
Somebody is supposed to be committing suicids|" that he said, 
•^Vhere?" that they said, "Somebody is supposed to be sitting in a 
car}** that he said to the firemen that there must be some mistake, 
and he invited them in to have a drink, which they refused | that the 
firemen said thay r-^^ceived a call that somebody was going to commit 
suicide; that he thought there was a fire in ':aa house and he opened 
the door and let the firemen into the house. Plaintiff further 
testified that on a Christmas sve his wife told him that she was going 
to leave him and thereupon he "':hreatened to commit suicide ^d-th that 
same gun;" that ho said to her, "I might as well go in and do the 
fadeout act because I don»t want to live without her. I went in the 
bathroom and closed the door, but it was against my religion and 
scruples, so I caime out," Katherine Regan testified that she remenH 
bered when the fire d'Spartment came to the Clancy home; that her 
telephone rargand Mrs. Clancy told her that her husband was threatening 
to take his life; that she, ths witness, did not wait to get dressed 
but put on a robe and slippers and went to the Clancy home; that mean- 
wiiile the police arrived and she asked them what was wrong and they 
said, "Everything was okay, he just was a little drunk, I guess;" that 

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JEkaefc the fire department was in front of the home and plaintiff 
was in the kitchen offering the firemen a drink; that plaintiff 
"wasn't drunk, by any means j" that she had seen him when he had 
liquor on his breath hut that she had never seen him when he was 
intoxicated "and lost control of his walk and could not walk 
straight," Plaintiff further testified that he had "never been 
intoxicated in the course of my married life." 

The trial court found that the "testimony of the plaintiff 
and cross-defendant, Edward Clancy^ alone is sufficient to prove 
such conduct on his part as would warrant the defendant and cross~ 
plaintiff in absenting herself from him." We are in full accord, 
with that finding. Counsel for plaintiff realize, apparently, 
that It is somewhat difficult for them to argue that the court's 
finding was not supported by the evidence, and they strenuously 
argue that "any offense the plaintiff may have committed prior to 
November 4, 1938, was condoned by the defendant," and that after 
the condonation there was no active misconduct on the part of plain- 
tiff that would nullify the effect of the condonement. Both parties 
agree that after the death of Carol and while her body was still in 
the home, plaintiff returned to the home and lived there until April 
30, 1939, The alleged condonement is based upon plaintiff's testi- 
mony that in December, 1938, he had sexual relations with his wife, 
although he "had to fight with her a little bit;" that that was 
the only time he had such relationship during the period in questions- 
He further testified that during that period he lived at home, ate 
his meals there, and there were no quarrels of any kind between him 
and his wife. Cross-plaintiff testified that her husband attempted 
to have sexual relations with her upon one occasion, in December, 
1938;> but that he did not succeed; that thereafter he did not 
attempt to have relationship with her* The trial court was of the 
opinion that it was probable that there was intercourse at the time 
in question between the parties. We believe cross-plaintiff's 


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testimony in regard to the incident. Condonation is an affirmative 
defense and the burden was upoh plaintiff to establish such defense 
by a preponderance of the evidence. (See Kle kamp v. Klekamp^ 275 
111. 98, 103. See, alsoy Lioe v. Lipe , 327 111, 39, 42.) Hffe do not 
think that plaintiff successfully sustained the burden. It is also 
the law that condonation of the wife's offense by the husband is a 
stricter bar against the procuring of a divorce than is condonation 
by the wife of the husband's offense, inasmuch as she may find It 
difficult to quit the domicile and often subrsits tlirough necessity^ 
and hence condonation on the part of the wife is not pressed with 
the same vigor as condonation on the part of the husband, ( Duber- 
stein V. Dubersteiny I7I 111, 133; Coonce v. Coorice, 296 111, ^B^, 
59IJ Gilliam v. Gilliam^. 2^4 111, App, 606 (Abst.)| Doose v^ Doose j. 
198 111. App, 387, 392.) In any event, the trial court found that 
the subsequent conduct of plaintiff revoked the forgiveness and 
revived the former offenses. We are impressed with the truth of 
an answer made by cross-plaintiff to & question put to her by the 
trial court as to what happened between November, 1938, and April 
30, 1939. Cross-plaintiff stated: "I thought that after Carol 
died and Mr, Clancy moved back into the house that maybe he was 
going to chanfe and things could be fixed between us and we could 
go on for the sake of Phyllis Mary, But that showed he didn't change 
his way of living, Froto. then on he spent most of his time at the 
Regans »« He came home and couldn't wait to get out and go across 
the street to their house. I would have the meals cooked, ready 
for hlm« He wouldn't call to say he wasn't coming home. Then at 
Christmas he had a chance to be off at Christmas or New Year's* I 
asked him to take the Christmas Day off. He said no, he wanted to 
take New Year's Day off. He said his sister wanted us to caae for 
dinner. I said my mother wanted us to come to her house, X said 
we would stay home for dinner and after dinner I could go to ay 
mother and he could go to his sister's , I asked him if he could 

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be home at two o'clock for dinner, and he said yes, he could, I 

cooked a bi^ turkey dinner and put it on the table. It was three 

o'clock and he wasn't home yet, I called at the office and they 

said he had been gone for a long time* So a quarter after three 

I left and went to my mother's, I don't know what time he got home. 

Prom then on it was the same thing. He would come sometimes for 

his meals, sometimes he wouldn't. That was no home life, 'A^hen he 

was home he would lay on the couch and sleep, never could have any 

conversation with hlai about anything, 'hen I saw things going on 

like that, I thought there was no sense in having a home for Phyllis 

Mary under those conditions, I thought she would be better off with 

Just the two of us, where there was at least peace, The Court: Any 

questions? Mr, Friedman [attorney for plaintiff]: No, I take it 

you are interested as a third party," Cross-plaintiff knew when she 

made this statement to the court that plaintiff was pleading condone- 

ment, and if she had been willing to swear falsely it would have been 

an easy matter for her to testify that he came home drunk upon a 

number of occasions and that he was guilty of acts of cruelty toward 

her, but she did not so testify. It is not true, as plaintiff argues, 

that her testimony shows that plaintiff was not drinking during that 

period of time. During the cross-examination of the witness the 

following occurred: "Q, He was sobei^all that time, wasn't he? 

A* I wouldn't call him sober, he was still drinking, Q, But he 

wasn't intoxicated and never abused you during that period of time? 

A, No,** The witness further testified that while defendant was not 

exactly intoxicated on April 28 or 29, "he did have liquor in him," 

and she further testified that she told him in April "that the way 

he was going, drinking, and hadn't promised to live any other way,*^ 

that she could not go on living that way^ 

What is condonation? "Condonation, in the law of divorce, 

is the forgiveness of an antecedent matrimonial offense on condition 

that it shall not be repeated and that the offender shall thereafter 

»9^S asw ^I »©I<tsc^ sxi;f ao dl cfuq fins iBimifi "^©jC-si/c? Slcf is fceofooo 

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CIO guioa p.:^.Mi w«a I lisiiv , ?i«lii ji^Ovi ismda mid Ailia xioliBeievnoo 

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cfon asiif ^fnsitfip'loc eXlriw d-Brio fefsXlXd'aoi i^rid-'zcl as©no±w rdT ** ^o7i ,A 

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iBi^mtodi llati^ isbOQllo &d:^ tMAi ba& fcojfisoqe'i stf ;fon IXwfB d^X *«tf* 


treat the forgiving party with conjugal kindness, ( Sharp v. Sharp ^ 
116 111. 509 j Farnham v^ FsT-nh/^ n^^ 73 id, 4-97; Davis v. Davi^ j. I9 
id* 334-.) Although condonation implies a condition whi,ch will permit 
the original charge to he considered in connection with a subsequent 
offense against the marital relation, the later misconduct must 
amount to more than slight acts of coldness or unkindness or mere 
quarreling, ( Abbot v. Abbotj. I92 Ill» 439.) While the facts of 
each particular case must be considered upon the question whether 
the former grievance is revived by the subsequent conduct of the 
offending party, yet it is not necessary that the misconduct succeed- 
ing condonation shall be of the same class or character as thst con- 
doned, or, standing alone, shall be sufficient to form an independent 
ground for divorce. The injured spouse has a right to judge of the 
future by the past, and the court will connect the whole of the un- 
faithful partner's conduct in order to reach a correct crnclusion. 
Sharp V, Sh^rp, supra t Farnham v. Farnham j. supra j 2 Schouler on 
Marriage, Divorce, Separation and Domestic Relations, (6th ed.) 
sec, 1704J Davis v. Davis ^ supra ." ( Young v. Young, 323 111, 
608, 613, 614.) 

Even if it be assumed that the parties, in December, had 
sexual intercourse, nevertheless, we are satisfied that the trial 
court was justified in finding that thereafter plaintiff did not 
treat his wife with conjugal kindness. The mother was then griev- 
ing over the recent loss of her baby and it was a time for plaintiff 
to show special consideration and affection toward his wife. Plain- 
tiff insisted, upon the witness stand, that he loved his wife and 
thai; since the separation he had asked her more than a hundred times 
to return to him. But it is he, not his wife, who asks for a divorce* 
It may well be that when plaintiff shows that he la alile to lead a 
sober life there la a chance that this couple may be reunited. Calling 
upon his wife daily while she was in the hospital, after the separa- 
tion, wh«n "there was liquor on his breath every time he came," does 

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--£ii£iIS!; ,Qli^ zM biQVoi aoX^J-os'ils baa s&l^s^&Jblsnco Xfiioe^qa wade o;t 

eesilc? bsibswd & tmdS o'lom rami Jbejfaa bRd 9d /loliaisqse ottf ©onia jbsU 

,s>oiovJtl> B 10I g3fe« tMiw ^elXw eXri ;;^on ^i>d ai d^J; twS .isJtrf o* a'usjei oi 

s b&el ot ftXrfB «X sd ^erld- ewe^e llliJaXjsXq n»xi'w d^i;jxf;t e>cf iXaw xaai ^I 

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not Indieate that he is saMng a serious effort to lead a sober 

After a careful examination of the record in this case 
we are satisfied that the decree of the Superior court of Cook 
county is a just one and it is affirmed, 


Snlllvan, P« J.^ and Friend^ J*, concur* 

*'H}S«io& ^*:. ^■ii^.^.T Iv-^ I.' ' ^nsvlXXfl? 



Appellee, ^,^-=^" 


MARCELLA J^^'FFE, also known ) 
as Or^ffo Z, Graff e. ) 

.^^-^'^ Appellant, ) 


On October 31, 1941, plaintiff, Samuel J« Graffe, was 
granted a decree of divorce upon his amended complaint, and 
the counterclaim of defendant, Marcella Graffe, for separate 
maintenance was dismissed for want of equity. She appeals « 
As we have reached the conclusion that there has been 
a miscarriage of justice in this case we deem it advisable 
to make a full statement of the pleadings and the facts 
adduced upon the hearing. 

On May 7, 1940, Graffe, hereinafter called plaintiff, 
filed a verified complaint for divorce against his wife, 
Marcella Graffe, in which he alleged that the parties were 
married on July 22, 1932, and that they lived and cohabited 
together xmtil February 27, 1939 J that he conducted himself 
as a kind and affectionate husband toward herj that defendant 
on February 27, 1939, "wilfully and intentionally and without 
any reasonable cause brought the cohabitation to an end liy 
misconduct, which rendered the continuance of the marital 
relations so unbearabl e tha t the plaintiff herein was forced 
to leave his home on February 28 j 19 ^9 ^ and that the said acts 
of the defendant herein were such as justified the plaintiff 
herein in leaving. * * * That this forced desertion on the part 
of the defendant has persisted for the space of one year and 
upwards and yet continues^ " and plaintiff prayed that he be 
granted a divorce. Defendant filed an answer, which alleges 
that plaintiff did not conduct himself toward her as a true. 


^Mi30D 2000 .Id- - 


^K-^WAflf) ,1. JHDM18 


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Mnd and affectionate husband, and denies that she "wilfully and 
intentionally and without any reasonable cause, brought the 
cohabitation to an end by misconduct and such misconduct rendering 
the continuance of the marital relations so unbearable that the 
plaintiff was forced to leave his home on February 28, 1939 •" ^iie 
answer further alleges that the allegations in plaintiff »s complaint 
are insufficient at law to constitute a cause for divorce, that they 
are mere conclusions, and she reserves the right to move to strike 
the complaint for insufficiency at law. Defendant also filed a 
counterclaim, in which she alleged that she lived and cohabited 
with plaintiff until March 4, 1939J that she always conducted her* 
self toward her husband as a true, loving and affectionate wife and 
was at all times ready, willing and able to perform her marital 
duties; that plaintiff disregarded his marital duties and persisted 
in unethical and disgraceful conduct toward her; that he has "con- 
tinuously and persistently indulged in matters and things so un- 
ethical and disgraceful that this counterclaimant is impelled, be- 
cause of proper decency and due respect to the Court^ to refrain 
from alleging same herein;" that on March 4, 1939* without any 
fault, cause op reason on her part and on mere whim and caprice of 
plaintiff he wilfully deserted and absented himself from her for 
more than one year and at no time has he made any effort to return, 
although she has often entreated him to do soj that "the counter** 
defendant consistently and continuously has lived separate and apart 
and wilfully and wrongfully, without the fault of the counter-* 
claimant, refused to cohabit with the counter-claimant as husband 
and wife;" that such desertion continues; that he, prior to the 
said desertion and thereafter, committed adultery with one Mary Doe; 
that plaintiff has failed to support her and that he has ignored the 
order of the Court of Domestic Relations that he pay her five dollars 

per week for her support and that he is now in arrears in the sum of 

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ninety dollars j that he has made several attempts against her life ' 
"and has used every trick, artifice, connivance and contrivance 
conceivable by the so called abuse of legal process to have the 
counter-claimant committed to the insane asylum, but without any 
success, and he is now endeavoring and uses every possible and 
thinkable method to so have counter-claimant committed to the Insane 
asylum;" that she is destitute and without means of support, and that 
she has been depending upon her friends for support and is about to 
become a public charge; that she is unable to pay counsel to repre-^ 
sent her 5 that plaintiff is an able-bodied man and earns forty to 
fifty dollars per week, and she prays for a decree of separate 
maintenance and for an order for her support and maintenance and 
that attorney's fees and costs be allowed her. Plaintiff's verified 
answer to the counterclaim denies that he lived with his wife until 
March 4, 19 39 J denies that she was a true and affectionate Tdfej 
denies that he was guilty of unethical and disgraceful conduct; 
denies that he deserted her on March 4, 1939> and alleges that 
he left his wife on February 27. 19 ^Qj. "for causes .1ust.ifvl , n , f 1? 1b 
in bringing the co-habitation to an end: " denies that he was guilty 
of adultery; admits that the Court of Domestic Relations required 
him to pay five dollars a week for the support of his wife; denies 
that he threatened her life; denies that he earns forty to fifty 
dollars per week, and prays that the counterclaim be dismissed* 

On July 1, 1940, Judge Desort referred to a special commissioner 
defendant's motion to strike plaintiff's complaint and he ordered the 
commissioner to take testimony as to the financial responsibility of 
plaintiff. On October 24, 1940, the commissioner filed a report, in 
Trtiieh he recommended that defendant be permitted to withdraw her 
answer to the complaint and to file a motion to strike the complaint, 
as the complaint is insufficient at law and states no statutory 
grounds for divorce. The commissioner reported that he was unable 
to hear testimony as to the financial responsibility of plaintiff 

•1±X isfi JfEfilss^ actqia&d-d-js Xjsisvss ebtm Siai aii isd^ iBi&llob t^^iiin 

oa{£svli>tfloo iwife ssmavinnoo ^©oi:lld-T:s ^slali.t Tjisrya Sean esri \5ni3" 

sfij" 9^ari od" aasooiq Isa©! lo ssuda &9lIiso oe srfJ' -^cf ©IcfBvlsofioo 

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en^sni Slid- o;j Ssd'cMinnioo dnBElfiio^-nsdnxfoo evsii oa oj- feoiid-&Bi slcffiatairlJ^ 

\sc;;t jocfi ^d^ioqqjjo lo subsjs d'iJ'oxld'iw brts sc^xjd-id-seb ei sxiE d-sfld "jsz/I^Rb 

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— eiqs'x od" Xssjfujoo ■\£6q od" sldBjcm ai sxia J-srid^ jsgisrio oildwq b emooacf 

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b£i& S5nsfi9dni£iin Ms d'loqqjjs leii ic'l leb-io ns lol: bsm sonsxis'tnlBm 

fisxli'io'v a ' 11 xiniiBll .isri JbswoIlB acf ad-aoo fifu ae&l ?Jy:9nio:j&& tsA^ 

Ltinsj elm sM diitw bsvll ®xl d^sild aeineo ml-^ioid&assoo &di- oi iswane 

j®llw ed-snoxd-a©llj3 Jjcre ssjii b asw srla j-firid- a&insb |^£9I ^-^ ri^^sM 

l^ossbiioo InJBOBi^Qtb bns l&oM:i&£SV to x^llti^ aaw eri :f&di aetneb 

r-iidd- Bib^olle. haB ,^£^I ^-^ rfDii;-M ao *X9d bQSi&^9b ©d j-sil^ 8©in©£) 

i;wi_^jSfell.jj?ffJ^.saejg.^s..30l!V ^eg^eX. ,^S TiBgiMe'^ g o el.fcw aixi neX ad 

•id-XiJjS a&w 9fi d'fiild' asinsfi " ;jha& n g oj ftpIJ- e^Mcfatt-^o o ftrid" sinlanlTCf ai 

b&ilupBz snold-fiXsH aJtoaesoG lo iissoO bAS :^&ji& sSimbs {xi&Slabis to 

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.. aolBZimioo Xsioaqe & od- Jbottislei d'loEed ©s^xft ^OPX ^X ■^Xi/'L xiO 

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lo x^lll^i-ti^oqsBi XiiioHfiflJ:! oflif od" a^; ■^nomldasd' 9:ilRi o:t nenoxeaiiflartoo 

c.i: ^d-^ogs-s e bsXxl i^GoisaJbawoo erid- ^(X^^X ^-^Si letfod^oO nO .llWnlsXq 

'^eri WBtri)£ld^iw od bei-d^iinisq sd d-flfif^nsleb iJBxld' bsbaemioos't^A dohfw 

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vio^t^.t-.Tp. o.t a^d^Bd-a bus wbX d's dflsxoillx/sni: aX dxilBlqinoo arid sb 

aXci'isxuj Gisw 'ui v^i bBiioqQi lenoxasIsiHioo ©riT .©oiovih lol afcnuois 

lli^alMq lo x^iXldisiioqasT: XfiloflBXSil sdi o:t as y/tomidssd issri oi 

for the reason that plaintiff's attorney refused to allow plaintiff 
to testify. On December 6, 1940, Judge Desort entered an order 
approving the report of the special commissioner and ordering plain-' 
tiff to pay defendant fifty dollars for her attorney's fees and 
farther ordering plaintiff to pay defendant the sim. of twelve 
dollars per week as temporary alimony. This order was 0,K»d by 
plaintiff's attorney. Subsequently several orders were entered 
finding plaintiff guilty of wilful contempt of court for his failure 
to pay defendant the fifty dollars for her attorney's fees and fop 
failure to pay the temporary alimony to cross-plaintiff. On August 
26, 1941, Judge Lindsay entered an order finding that there was due 
defendant from plaintiff $375 for her support and maintenance under 
the order entered October 24, 1940; also finding that plaintiff had. 
not answered the rule that was entered against him and that he was 
guilty of wilful contempt of court for failure to pay the said sum 
and the sheriff was ordered to take the body of plaintiff into 
custody and hold him until he was discharged by due process of law. 
On September 5» 1941, Judge 9®^°^'^ entered a like order to the one 
entered by Judge Lindsay. On October 8, 1941, Judge Desort granted 
a motion of plaintiff's attorney that all motions then pending 
before him be transferred to Judge Nelson "to be disposed of con- 
temporaneously with the hearing of said merits of said cause on 
October 22, 1941, " On October 14, 1941, Judge Nelson entered an 
order that plaintiff be allowed to file an amended complaint, 
which alleges that plaintiff always conducted himself as a good 
husband and that on February 24, 1939, defendant, without any 
reasonable cause or Justification, " did leave and absent herself 
and did desert the plaintiff and counterdefendant from their home 
* * * and did persist and cont lTma i^ said desertion for the space 
of one year » * * and has persisted and continu e d in such deserti on 
to the present time ;" that on February 24, 1939^ she turned on 
the radio to such an advanced and tremendous volume of tome that 


lefym a& fo&«csd-xsfl 3io«reQ fgfeirl, ^O^^I. ^d ^®cffi*eoe€ £tfd '..-^i^^e^ od" 

fens si>s'3: 2'\:oxiioJ-^£ ^©rf to.! &i&£lob x^lMt tM»baeti>b xsq Qi lUtd" 

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fcoog i; as IXeeiKM fce^suMoo 2-^bwIb tlX^taieXq d-^dj- 89S©-tJ^« iiolrlw 

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noi&ie^&sb fXsx/,e nl bBu al:^aQO ba & b&iHlaie <j z Bd ba& ^ * * t&s x eao to 

no bsaini eds ^?£^X. f^S Tj^i^^r^cfsJ ijo i«d4^ "; ^mX« iaezeiQ edi oi 

iad^ »aod" lo fimuXov eirobncirasxt fen^ fteofliavbfi £i£ dosjB o^ olbsi erii- 

it was impossible for plaintiff to sleep, and that he "did request 
and appeal" to her to desist in the playing of the radio for the 
reason that he was employed nights and could not obtain his sleep, 
but that she ignored his request "and he did temporarily leave their 
home on February 24, 1939> and spent the day sleeping elsewhere;" 
that on February 25, 1939* he returned to his home and found defend** 
ant had taken a certain number of clothes and personal articles "and 
did desert and absent herself from their home;" that on February 
25, 1939> defendant^ without justification or provocation, obtained 
a warrant for his arrest on a charge of assault and battery and had 
a warrant served on him; that when the case was heard in the Muni- 
cipal court the Judge of that court ordered plaintiff to "be re- 
quired to move from that address where hfc had lived and he was 
compelled thereby to reside at a different address;" that in the 
early part of March, 1939, defendant came to plaintiff's place of 
employment and delivered to him all his clothes and personal effects 
"and instructed him not to return to his forjicr home which she again 
began to occupy «" The complaint prayed for a decree of divorce. 
Defendant filed an answer to the amended complaint in which she 
denies that she deserted plaintiff; denies that they separated on 
February 24, 1939, and avers that plaintiff wilfully and without 
just cause deserted her on March 4, 1939, The answer further 
alleges that the amended complaint is insufficient at law and that 
defendant reserves the right to make a motion to strike it« 

The following is the substance of the testimony offered by 
plaintiff: He testified that he was married to defendant on June 
22, 1932; that they lived together as husband and wife until February 
24, 1939> that at that time he was working as a night bartender at 
the Club Marathon; that his hours were from 10 p,m« until 8 a^m^j 
that when he came home on the morning of February 24 his wife 
"started playing the radio as loud as she could;" that he went to 
bed; that she got out the ironing board and started ironing clothes 

©fi ' .■ ._,-.tx^^<l 9-rf* -t^^ i'elesb o^ lex! od" "IseqqjB bns 

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lo 90£lq e'11i:;?nJt«x., -v ;:^«o ^;xidbiislsb ^^^I ^rionsM lo d-xsq "^Iiss 

sooells lB£ioBi&q httB ksii&olo ^'•'■' Xrs atljcf oi bQievllsb bns d-nernxoIqiHe 

o.^.i:' oxfa daM^ sinofl lemiOi <£.!.: v.o iiriwd's'i od- ctoa miii bed^oviisnt btiB" 

-.„^„j.- 'w, ',g^2ie5 g ^o^ be^fi^^ d-«ilBlqffioo siff ".yqiiooo o^ nssscf 

"'ttBlqinoo bsfexiSKfi srfo ot ismaa fis bslll oHfibnelieG 

uo bsfjiriii.isa \«nv d'srid' isine/ -"^'^'.tnifiiq b«3"i:©a9b e^e i-sri^t Eslnsb 

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'iBLij'nj'i iB^'iaB eri.i .?E^I ^-^^ iJoiisM etc -isxl bail's a© b saifBO :J-a.ut 

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asrid-blo snlno-il bed-iBj-a baa biBod gnlnonl ©rid- jwo io^ sda d-sdd t6s<^ 


and that because of the noise he could not sleep; that he got up 
and shut off the radio and she put it on again; that he said, 
"Listen, I work ten hours a night and I have got to get some 
sleep;" that she said, "Uho cares;" that he said, "I will put on 
my clothes and sleep somewhere where I can get some rest;" that he 
got up and put on his clothes; that she stood in the door as he 
started to leave but he pushed her away and went out and slept at 
a hotel that day; that he came hoae about 6:30 or 7 o'clock that 
evening and she was not at home; that he ate and went back to work; 
that the next morning when he got home she was not there, and the 
following morning she was not there; that on March 1 he was arrested 
on a charge of disorderly conduct brought by his wife; that on March 
2 he went to court, where he saw his wife for the first time since 
February 24; that the judge told him to stay away from his wife; 
that that night she ca«ft to the tavern where he was working and 
said to him, "Here ar-a the balance of your clothes," and "you stay 
out," and she left with him two shopping bags full of clothes; that 
he did not say anything to her as there were fifty or sixty people 
in the place; that between February 24 and the first day he went tc 
court he lived at home but that she did not; that the judge said to 
him, "You stay away from her;" that at the time she left the bags 
of clothes with him she also said to him, "I am through;" that 
about a year after the separation he was standing on the corner of 
Clark and Huron streets, when his wife came up to him and said, 
"Where is my money," to which he answered, "I havenH got any money; <» 
that she then put her hand in her purse and she had a little pen 
knife about that big (indicating) and was going to cut my face with 
it; that nothing happened because he grabbed the knife away from 
her, and a couple of days later he went to the police station and 
got a warrant and she was arrested, but that he did not prosecute 
the case and was not present when the case was called for trial*, 
The witness also testified that while the salary scale for 


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^5i rdlBajB no o'l ^xrq Qds baa ei:,fe«5 ari4"11o Jcxia 6ca 

yiEoa :'&§ oj d-o§ svm I r>nB d-risxrt £ a^jrori n©j riow I ^xied'aiJ*' 

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raoa o's;; »i«£wa9i6ilw©ffl03 q©©ls ba& eediolo xpi 

lOQb siii flx boGcJ-a sri : •^asrld'olo &M no ^Jjq bufi qu J-og 

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ioisM fi .iirl -^jcf d-^giioia cJ-oi/fefjoo xIiefeioeifD lo sgisxio £ no 

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fejtifi isolJBd-e solXoq ©rid od- "new ed 10^ bI ex^b lo alqjjoo b bns ,.19X1 

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^Xsiid" 101 fieXiBO as;-. ;>£ld-, xiodw ^xjeasiq ioa acw bns easo srld^ 

Tol ©Xbo8 "^ifiXsa 9jcf^ eXlxlw i.zd:- bellliaei oaXn aaeniiw exlT 


Jtoc bartenderajwas thirty-five .dollars a week lidLs jlmcisme (tmirlDg 
the last five months was twenty dollars a week regular pay and 
a few dollarc extra; that in February, 1941, during the pendency 
of the instant suit, he met his wife on the street one day and 
said to her, "I'l'hy don't you quit that [working in a tavern] aiid 
see if we can't get together somehow;" that she said she would 
not, that all she wanted was her alimony; that he always treated 
his wife the best that any man could; that he did not give his 
wife any cause to leave him. During the direct examination of 
plaintiff the following occurred: "Q, Did you ever conduct op 
have any interest or share in the proceeds of any house of 
ill-fame? A. No, I don't know of any* I did not, « * * q^ 
Did you have any interest in such a line of prostitution or in 
any prostitution or in shares of the proceeds? * * * A. Not to 
my knowledge," Upon cross-examination he testified that some of 
his wife's clothes were still in the apartment on March 1; that 
he did not go back to his heme after March 1 because the jud^e 
told him to stay arway from there; that after March 1 his wife 
lived in the apartment for six weeks or two months but that he 
did not go back to see her; that on March 10 Ms wife brought 
proceedings for non-support and that the Judge ordered him to 
pay her five dollars a week, (A Municipal court record intro- 
duced in evidence shows that on March 10, 1939^ Judge Graber 
found plaintiff guilty of the criminal offense of non-support of 
wife and ordered him to pay five dollars per week for her support.) 
Plaintiff admitted that in April, 1927, he was convicted, under 
the name of Sam G-raffi, of counterfeiting, in the United States 
District Court, and that he served three years in the United 
States Penitentiary at Leavenworth, Kansas, for the offense; that 

on July 14-, 1936, in the United States District Court, he was coc^ 
victed in two cases of "peddling narcotics" and that he was sex** 

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10 &ojjbnoo 1QVB ijQ\ bid ,9** ibsiiaaoo ^^ollol eriJ' ^^I^nxelq 

,9 "^^ * ^;- ,ooxi f>±f) I ♦•\jiij& *io wojEDf j'no£-> I ^oM ♦A ^saisl-IIJ: 

nl 'lo nold-ifd-id-Boiq to &i:i]:l & doiJ& til ^esisifii xaa Bvesi uox btQ. 

oi ctoK . ..Jbesooiq Sflj lo ^bib;^^ Ml lo aQliisili&Qiq, >5iij3 

"10 ^m>&.is&di.bel11i&e:f ®i^ nold'siisliEi^s-'SSo^o rioqU '♦.sgBsIwoxnl ^ 

d'^^xio jl rIoT[B.M fto d-£i©fii.ti6^B ©4d" at liiia eie-w eexic^olo a'sliw ajtxl 

6>gbL't »^* 9ai;B9scf I rIsrtsM -xe^ls ©laofl sJui o;t ^o.g(f og don 611) sri 

elx-iT aixi I x^oisM iS'^l^s d-sriy js*isfii aoil •^J£wnl ijBd-a ocf mlil bio:} 

9ri cJ->3Xi.t d^M and"noia owvt 10 e^ssw xls 10 'i d-jaead-isqs f>di al bsvlL 

at Slid beiebio s'gbsjl edi ;f&d:^ Irb iioqqsis.-'^oa io1 agall^ssoonq 

-Ciiiiil 5T0C&1 d-Tjyoo IsqiGineM A) ,j[e©w b a^sllob svil isil xsq 

-ledBiO B-^bnl ^^£^1 ^01 lioisM no ;^Bfi^ awojle. eofisblvs ni i)90u5 

J oqqjye-^iion 'io ©sjat'ilt^o lEalmlio ad.i- "io x?Xl«§ HiJnlBlq bmsol 

(,d-*coqqi38 "S&ri o:©*!: >f<^!©«r isq e'SftlloJb ovjf?: ^Jsq oi' said be%ebto ba& bIJcv 

-zsMn ^hetol'faoo sisr sjeI ^^S^I ^liiqA at ^RtfJ b&^^tlmbs Itl^^ai&I^ 

ascJ-g^a be&ltill »rij 0I ^acl^tlsliscrni/oo lo ^i'i'iei'D msQ lo smsc tdi 

boihiU srld" ni SIBOX ©aixiit ^sviss &£ iBdi bae ^d-iiroO ^olioSlQ 

•-'rjoo asv/ eri ,:tiwoO cJ-oii^sKi a^K-ty. . nvilaU s.dJ- ni t<i£^I ^M •^jlxxt no 
-HHSE 2fiw erl :}-.f5i{j- baa "eoJtJooiBn sniljjfcoq" "io apBBo owd^ a± fes^olv 

tenced to serve a year and a da/ in the penitentiary at Leaven- 
worth in sach case, the two sentences to run concurrently; that 
he was indicted and convicted under the name of Samuel J, Graffy^ 
The records show that plaintiff pleaded guilty to each of the three 
indictments. The indictments in the narcotics cases cliarge the 
sale of a derivative of opium. The witness further testified that 
he was working for Bahette, at 446 South State street, as a bar- 
tender; that on March 7, 1939, his wife came into the Club Mara- 
trsm "and raised hell in there about wanting more money," 

Plaintiff called George Schmidt as a witness, who testified 
that he knew plaintiff well but t'nat he did not know defendant; 
that in the earl> part of Ir-arch, 1939* he was in the Club Mara- 
thon, a tavern; that plaintiff ?/as behind the bar; that defendant 
walked in with two packages and threw then, on the floor and said, 
"Here is the rest of your clothes, I am through," and she turred 
around and v/alked oul; that plaintiff was "dumfounded'^ and said 
nothing. Upon cross-examination he testified that occasionally 
he worked as an extra waiter at the Club Marathon but that he was 
not working there at the time in quGstion| that he was an old 
friend of plaintiff. The only other witness called by plaintiff 
v/as Ernest E, Schaeffer, who testified that plc.intiff lived at 
1512 Korth LaSalle street the latter part of 1939 and all of 1940; 
that defendant did not live there. 

Plaintiff then rested, and counsel for defendant moved to 
dismiss the complaint for divorce for want of equity, which motion 
was denied after the court refused the counsel an opportunity to 
argue the motion. 

In her own behalf, defendant testified that she hs-d lived in 
Chicago for at least thirty years; th&t after her marriage to plain- 
tiff, on June 22, 1932, she lived and cohabited with him; that on 
March 4, 1939> ^'^r husband came in with the Tribune and showed her 
a headline that Judge Finnegan said it wts all right to hit your 

^■•■C'^jBi€) j,l» iBLmBB ^o ©mBr- . ixxi/ bsSolvaoo bna betolbcil bbv &d 

s£ut sg^fifiO aesfco BDld-oorran olid' as ziae^i oJtbaS: exIT .ecJ-xxsjEcS-olbni 

-iiisM cfjflO »/ld- olnj: sm&o Qltvi aid ^^c^l ^S ilo^fiM no d-Bil^ jiceJbHsd 
♦*.v*>no0 K-rjoffl snjtd"iS6w ;tiiocfB. ©tcadcJ itx IXsil bezlai fens" isflf/.j- 

feei;1:J:cJ^3s:t orfi? ^assiiJ-li? ijs as cl-felaidsS egiosC b^llBts> ItxcfrLtBl-I 
^:^nefeff#^©& wofii c^ofi bib sri d-siid d'^cf Hew llj-cf/iifelq.wsn:^ sri cffirLt 
-£T[sM cfrlS «ii* nl aew oil ^^£^1 t£taiJ3l 'io cf'usq ^Ii£9 silu nJt d,exIJ 

^.bl&s baB looll efii\flo;.Mitff -wsiitcf Mjfe 893^^ ©tyd- -xlJiw nx bejllsw 

bii&a baB "bebswolmui: lliinls^lq j«d4" {JUo h'Mlsit ban Jbfljjoxs 

YlIeaoiaBOoo Sb^j b^lltieej ed aolJBiilmsxe^aao^o noqU .aaldjon 

Mo- rue 3bv; oil tiodJ- j'liofifaoirr ni Bml&''€df && s'Tf^di gaMiow ;tofl 

1*^ i:.t£f IjsI^ X^ 'bellEO aaoKiiw isilzfo ^i^^io ^^'^ .ItJli^alslq Io baoi'H 

• • bsYll 1J.Mnl.iLq jjsii^ &©llJE::i-^»i- Offw^TsllsMoS ,2 ;^^©m:5I ebw 

lis Bni? Pr^I Io ■^ir.q -xsifjel 9iS^ jesicfa ellfiSfiJ d:iio7!i ^l^l 

»9'X9rlj 9VxI oon bib SasbnolBb Z'£iii 
jj Jbe-^iOE c'lisMietsfc _. ... „:-JniLfoo fiiis ^fosctasrs a'3dS Tiliai&l^^ 
rcoioCffl rJoJbdw ^^jl«pfi Io S-xisw io^ ©^iovi£) lol ^jBLtBlqiaoo 9d:} aaxaalb 
oj TgdlHi/d-foqqo ns S-sbiwo^ mif b^ks^Bi iiifoo edt leits belnob bbw 

»iiolJoai odi 9V21S 
.ii; i,svj!:I fccd aria d-£;ii.t jbsllivtesdf c^nsJbi3©ls»5 ^lilrsifscf mro -n r: al 
-nielc: o;t e^BliiBia led isd'^d iBd:f jaise-rc ^itiifl:? iBBsl &b ioI o^BOldO 
GO ;tfiild- {Bild dttv b^'Si^Moo Uia bevxl sris ^S^f*! ^SS cnirt no ^1'lti 

•wife, and that her husband hit her over the head with the news- 
paper and said, "Go downtown and get a divorce and I will pay 
for itj" that the next day her husband took away all his clothes 
and took them to the Marathon; that her husband left while she 
was going to the grocery store; that her husband was working as 
a bartender at the Marathon Club and the next day she called him 
on the telephone and "told him to come on back, that we were adult 
people, we had been through too much trouble already and he said, 
*I will do what I like about it,' He had a younger woman, Q* 
H&s that all that was said? A, Well, I was crying so^^I do not 
remember, probably more things were said;** that she talked to her 
husband many times; that she was given the address of the place 
where he was living, 733 North LaSalle Street, and she "went there 
and asked for the woman's name,** and the landlady s'lc 'od her the 
register and she saw on the register, "Sandy Morgan .M v/ife;" 
that the writing, "Sandy Morgan and wife," was in her husband's 
handwriting; that she went up to the apartment, No« 8, and pushed 
the door open and she aaw "a woman in a house coat and Mr. Graffs 
were on the bed in the act of intercourse and when he saw me, he ran 
out and I took his watch and ring and I went Lack and talked to the 
landlady;" that two days afterward her husband told her he wanted 
his watch and ring and she said to him, "Hlhat about this woman?" 
ths.t she further said, "Sam, you are making a mistake, the woman 
is all right, you told her you wasn't married;" that she further 
said to him, 'Come back;" that he answered that "after he gets 
through doing some things and making a lot of money, he will be 
back, he can make a lot of money off of that woman;" that for two 
weeks after her husband left the home she continued to live there; 
thac she paid the rent for the two weeks (here the witness produced 
a receipt for the two weeks' rent); that she lived continuously in 
the home until March 21 or March 22; that her husband never came to 
the home during that period although she requested him to come 

V6-, :'--^ IV: , ;. : J"98 &nB rtwoo'xsvob ol>" ^blfig fjnfi isqsq 

arxij-olD airi lis --jfiw^ aJood" Succfejeii T®ri "^Bfc dxsii 9ii:J tsiid- "{;M lol 
oiir, ej.lxlw j-^el basdsmi isd jjsrii ;aoiic^i?rfBM adj ocJ insrf:!' 3ioo.t Mb 

i:±ri fteilso ef?¥ ■^«ft ;|-x©ii siii bns q'xjXS norfisrtisM Sjrid" ie iBbaeii&6 b 

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^b]:.os 9f£ fjHB -^bseilB sIcfjtfOTtd- risum ooi rfgwoirliit Jipecf fijRfi sw ^sXqosq 

^ v:.«Tvo-<- le-itwox B fjBfi 6H '..j-i d-ijocTs eifll I j-Bffw oJb Iliy I* 

--^ 0.. I^^pa ijcIy'io asvr I ,II©W .A Tfejtjse gjsw d-sricf IIb d-sff:J- a^W 

-^-rl Qi f>e2fI;ou 9xi2 cfeiW "\bt^Q 9 tew agiilrl^t siois X-^c^st^o^*? ^^scto9iH»i 

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"jsliv; .,j ,.^'i(M -^bas^ ^isd'eirgsi exXa- no wbs frffs f>n£ icd-aisei 

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-hj oj- bsafXi-^j ba& afoBc' .tfle^ I bas gnii cnx ilo.^f5T^ aid 3(ood I fins iuo 

b&$n£Sf7 s^ 'led bloS brtno'asjd i&ti bisKiQils eijsb ovrd^ cferiJ- *• iTcfefiXbrtsX 

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xiiJiEavr sfid- ^bj/b.t&xiti b snijiBBi s^b no\; ^fflBS" ^fciea leiid-ixn: Jffia ^t.srid' 

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sJ-©^ sff ts^Ib" j'B.:ld- beiswanB osi ^nfJ "jjfoBtf »f{oQ^ ^mlri oC blue 

9d Xliw sri ^x^aoEi lo :^ol B snljiBfH bas z'gDhiS •iiioa sniob risjLfoifid' 

ow,i 'lol j£fl:l "inBaiow oiulcf lo IJ.o -^enom lo J-oI n 92fsa hbo en ^itoscf 

{e'lBdi' evi.1 o& beunliaQo siia omod cdt ^fleX fcnsd'axai leri itilR zjiesn 

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ni Y-££^o^nX^rioo beviX sila d-sriJ- i(Snei 'ejJssw o-yj- '^rW lol ^^qieo^^ s 

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ajiioo oJ- mid beizesjpsi sde d'^SKid:fls bol'rsq ^tsrid- saltufb siaori -hLj 


homej that her husband lived with her until March 5; that he did 
not leave her between February 24 and March 5> that she never left 
him during their married life and that she waited for him v/hile he 
was in prison : (At this point her counsel attempted to show by the 
witness that she had sent money orders to her husband v;rhile he was 
■| in prison but the court erroneously sustained the objection to the 
offer.) that they always lived happily together until she found out 
about "this womano" The witness further testified that Judge Graber 
did not tell her husband to stay away from his homej that the judge 
said to her husbands "»You men who try to come in here and try to 
get rid of your wives, you pay her this support money and pay her 
some today,' and that's all;" that Judge Weiss did not tell her 
husband to stay away from his homej that he stated to her husband, 
"TUhy don't you support your wife," and her husband said, "I will 
give her ten dollars right now," and he got ten dollars from the 
owner of the Marathon Club and gave it to her„ The witness further 
stated that she has been living alone since March ^, 19395 that she 
has no income; that she is not working; that she spends all her time 
in courts; that she never asked her husband for $2^,000; that her 
husband has never asked her to come back; that she has asked her 
husband a good many times to come back; that on i;arch 2, 1939* sJi© 
did not bring her husband his clothes at the Marathon Club; that she 
was not at the Marathon Club on that date. Upon cross-examination 
the witness stated that her husband had never asked her to come 
back; that he did not leave his home on February 24; that they did 
not have a radio in their home^^ During the cross-examination the 
following occurred: "Q, And would you say he was mistaken when 
he stated that you came to the place of employment of Mr, Graffe on 
March 2nd, 1939 and threw two bags containing clothes down and say- 
ing, 'I am through,' would you say he was mistaken? A, I would 
not call it mistaken, I would say he lied," The witness then testi- 

bXb td i&rlj iz doisU llirw isd dSt:v bevll M^cfS'i/rf leri d'silct \BBK)d 
ilel isvsis 9ilB i :\d:j ;c lioic'I i5rfl >" ■^i^Jii'iafe'? neswcfecf lejrf svasI d-on 
M. ^IMw giL. .;■■; - .. - . , . - . ^^iia ©111 Beliisss -risrij- sxilijirf) eM 
edS x^ vyoile o;J fiejqiasci-d'e leaittroo isd iaJLoq ztd^ ik) ; qoeliq nl eaw 
aew ©xi sIMw bn&dzad isd o;; aisbio Y®iio^ j'nea foj34 sria d^Bii;t sesnd'iw 

;)fjo Iinifol eits leiicJ-sgod- xltqqBd bovlL a^^wlK -^edd- ^isxli (.asllo 

iscfB^D ©gMn. eillj-ssj isxid-ii/l: easnd-lw eilT "»iirfiiow sirlct" d-x;o<3"s 

e-$bsjl sd:i ^&di {Bsmd s.ld moil: tjbws ^aj-a o^ biiscfem rrsxf Ilsd- d-on 616 

oj ^icf. &n^ »isxl ill einoo oS x'^^ odxr asm uoY'" tbsiBd&Lrd led 06 blBZ 

i&d "^aq fetSB Ys^oKf J-ioqqija eidd' 'imi Xfiq box ^ *£3Jox Io foil i«s 

isxi IXej ion bib anis ' ->?36i;'& cfadd' "jlls &^SBdi bn& '' ^xsboi ©jsob 

^Msdsjjri asf' oj,' ^ ^.sdi |9fljoii g±xl moi^ xs^^ ^Bd-a od- bfiad'eud 

nil/ I" ^„ ..„:. _„ _., i9if bsta "gSliiw luo-^ d-ioqqx;a i:k>x j-'noft xf^" 

silj laoil 8iBlIoi) nsj J'o- -^ -^ hns '\won id-^ii s^sllob aed- isri sv±s 

isd^j'WJ. aasfiixw ©riT iiexl ^. J :, evag £)njs exflO HorJjjsisM sdj 1g 'isnwo 

©fie S'jBiid- i^£i?I ^c! xioisM 9eni:3 srsol^ §xilvil need est! sria ctsxid- bsied-s 

'^"■■'"'■•- isri Xlfi atoeqa sxia cfci^d jgisJbf^Jiow cfon al ©xi'a dsd.t jswoonl on aari 

•*s4 |>s:^es aad ©ils SsdS {jio&d ©iseo o:i" lerf bsaCes iqvqo. aod. fixuscfaiai 

<^jit ^^^l \S> doi&M. no cfari^ ;3fo«df ^mot> ocf aisralvt ■^xibm feoog b &/iGCf8ial 

..:a j-jsxf^ jcfirlO aod&B^&U &M j& scrict'oXo alxi teBcfeM itexl sniicf :fon 615 

noij.6jnxeiijx©-aaoio aoqU ,sd-a£» d-srJJ- jrio cfMO aodi&ism. 9d& v+s J-on asw 

ss:oo o.t ^©jti bs:isB i©ven fcsri Mscfa^jxi isri d-j?.riJ- bed-ed-a sasnd'iw edi 

bib xedi i&di ^-f^S x'^feja'idel £fo sBori alxl ©vssl cTon M6 sii J-biIj- jjfojstf 

©ii;t nolcti>£iiia£sxs*-eao"io »ii;t- siulijjQ *9Eorf ilsitT nl oJt&Bi s sveri d-oa 

nariw £i©2lj6cf2iffl asw sd X-S8 xrox bliKsw buA .p" tbetiiuooo gnlwollol 

no ©llaiO ,«iH lo d^xxeiuxolqra© lo ©OBlq BdS Qi &tmo aox iodi bsistB ed 

-X-sa b£i& xxwob aoricl-olo gnxniBCl-noo ejecf owJ- ws'ixl;* bns ^£^1 ^buS xloiaM 

bluow I .A ^GsalBCfsJiiK asw ©r! ^ss JoOy bltiow ^ ^d^voidi ms V ^gflJt 

-id'asd' nsxlc}' aasflJ-lw sriT "aIisII oil x-sb Muow I ^a^'Asoalm it IIbo J-on 

fied that on the day when she found her husband and the woman in 
bed in the hotel they were both drunk; that her husband took his 
hat and coat and ran out of the back door; that she introduced 
herself to the woman. The trial court unduly limited the direct 
examination of defendant. This concluded the evidence. Counsel 
for defendant stated to the court that he had tried to subpoena 
the landlady of the hotel but that she was out of town. The trial 
court stated that he had made efforts to bring about a reconcilia*^ 
tlon or a mutual settlement of the cause; that both of the parties 
"have been pretty much engaged in life outside of the pale of the 
law," Counsel for defendant called the attention of the court to 
the fact that there was no evidence to warrant the court's state- 
ment as to defendant. The court stated that he did not think there 
was a chance of the parties ever living together again; that he had 
tried to effect a settlement and that it was immaterial to him who 
got the divorce but that plaintiff had presented evidence which 
Justified the court in giving him a decree of divorce and that "the 

counta«H3omplaint has not been justified at all." Counsel for 

aummm^^fl^i^kpk.i 99 stated to the couTt that he had received nothing 

for his services in the cause. 

There is no theory of fact or law upon which the decree for 
divorce can be justified in this cause. We are unable to under-* 
stand why the court gave any credence to the testimony of plaintiff 
as to what brought about the separation of this couple. Upon his 
own admissions and upon the records introduced in evidence he plead 
guilty to the charge of counterfeiting in the United States District 
Court and served three years in the United States penitentiary at 
Leavenworth, Kansas, for that offense. A fortiori , he plead guilty 
in the United States District Court to two charges of selling 
narcotics and served a year and a day in the penitentiary at 
Leavenworth for the offense. He testified that he was convicted 

al xisEOw arid' ba& bnscfejxrl isrf £)fmo!t srie n&riw -^e'b sitJ- no d-isrlcf fisll 

Bid Jiooj- hoctfajjii neii itsxJi \:ikwib diod sisw \;sd? Isctoxl edS al bed 

bsouboid-al siIb t^di jioofc jfoscf arte lo jsjo URt bns cfaoo fcflB isd 

ioeiib arf^- L-solxall vljjfint/ oijuoo Isi^d^ silT .ai-,fflow ©rfJ- o;t "ilsaisrl 

XsaimGC .eoix??^lve sricf bebuLoaao aldT .cJ-nsBne'lsf) lo noi^BniuiuBXS 

acsoqdi/a oi fcslid^ f)jsxl ©li jed^ ^luoo edS ot b@&&:iB insbaelsb lot 

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sd.^ iO eXsq esi& lo sfclaJuo slil al bsgsgne dotm ^^d-siq nestf svsrf" 

Ovt c^ijjco sfW t© JjpI^nscJ'd'B ©ricf feelljso cfOBfrnslefe 10I learafoO ",waX 

-siaiQ 3'jixfoo ©r{;t cfiiaiifiw oo*^ Qoaeblve on asw e'lsiio .tsrfd' icRl 9n:i 

eisdi ^L. ;. Bfi-t bed-fid" a Siuoo sdT ,&asbas1eb o& as Saea 

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doidw soasblve beiaszBtq bsd "iJlinl&lq isdi iisd soiovlb edi io-% 

9ri^" iadi b£i£ doiovlb lo 99o:09& b eM snivlg nt iiuoo edi befllSzvt 

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^tdioa fesvleosT: bsd ari d-sdd- d-ix/oo sdi oi bei&ia ^*r^^i,m:{m^m^mmuK 

.©81/60 sdi nl Esolvies alri 10I 

'lol ssiosb ©xicf xlolilw fioqi; wbI 10 j-o&l lo '^losrld' on ei eisriT 

•~ie£ifiij od^ sXcffinif stiB s¥ .ssxjbo airij nl beniisvl, 9<f xibo ©oiovlb 

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66©Xq ed ®oii&blve nl btiOL'boiini. Bbioo&i sdi aoqv bns sxioXeBXinJbB xnro 

d"oli;t8lG ascffid-a bs^tlJHU Bdi al a^id-isliedruLfoo lo eaiBifo edi oi ^jcfXlxra 

iB xiBlia&iinQq zsi&iQ bsilnU sdi al &i&ex seirid- be-7iea bas irvoO 

-^JXlJJS baelq ed .^ JbnoXj'iol ^ .aenello i^j 10I ^2B2naX ^ri * lownsvBeJ 

SCiXIss lo ess'isilo owJ- od^ J-iuoO J-oiicfBlQ eeJ-jarfS beJXnU 9di al 

is, xiJsWneiXneq ^di at x&i> « tins issx b fcsviee Bab Bolcfooiaa 

beioXvaoo ev^- si£ jjsflj b©i:ll;ts9;^ eH .sensllo sdi 10't diioymf^vBsJ. 


in these two last cases of "peddling narcotics," It is a matter 
of comEion knowledge that there is no more depraved or unconscionable 
criminal than the man who peddles narcotics to the unfortunates who 
are addicted to the use of the same. Sec, 1, chap. 51> '^11« Rev, 
Stat, 1941, provides: "That no person shall be disqualified as a 
witness in any civil action * * * by reason of his or her conviction 
of any crime; but such interest or conviction may be shown for the 
purpose of affecting the credibility of such witness; and the fact 
of such conviction may be proven like any fact not of record, either 
by the ?dtness himself (who shall be compelled to testify thereto) 
or by any other witness cognizant of such conviction, as impeaching 
testimony, or by any other competent evidence," In Keehn v^ 
Braubach, IO7 111, Appo 339, 362, 363, we said: "This being a civil 
case the fact of the conviction may be proved like any fact not of 
record, either by the witness himself, who shall be compelled to 
testify thereto, or by any other witness cognizant of such convic- 
tion, as impeaching testimony, or by any other competent evidence, 
( Bailey v> Beallj> 2^1 Ill» ^11, 585.)" See, also. Gage v, Eddy^ 
167 111, 102, 108, 109, where the court said: "The conviction for 
crime, when offered as impeaching evidence at common law, could only 
be proved by offering the record of conviction and identifying the 
witness as the convicted person. The above section authorized 
other methods of showing such conviction as impeaching testimony. 

The ruling of the court in the two cases above stated was, that 

there could be no proofvexcept the record of a conviction for 

crime. In this there was error. The testimony of this witness 

was material and important," Other cases to the same effect might 

be cited If it were necessary. In plaintiff's verified original 

complaint he alleged that he was forced to desert his home because 

the misconduct of defendant rendered the continuance of the marital 

relations unbearable. In his verified answer to the counterclaim 

he alleges that he left his wife on February 27, 1939, "for causes 

aldisnolsajKoojKi.; to feev-siqefi eioai on a.t &ied:s indo ©gjjslworoi ijoimnoo lo 
o '. 'Bd-iSKifd-TOlGi/ Rd* o^r 's»i^psifia B©X£>£)©q oilw latfiffi swd^ asrid- iBaimlno 

,vef . . ,^J , ; -. . ' : saxj ©xlu o^ b^^olbbs eiB 

lllliiUj^' '. "Li.dc aoaieq on J^iiiT" :£9£.i:voiq ^il^^I ,cfB^a 

jiolj-oxvisoo • - . riocoo-i .r;oJ:;ioB Xlvio ^ii£i ixi assn^iw 

f :■■:•■ 'vol rcwo. ;u liold-olvnoo 'lo ian'ieial notse ind istElio -^q 1o 

9di ba& jaasjacrlw xiows 1o xSlXJ:(ilb@%p Bsii s«Wo©11j6 lo eeoqrujq 

(odsisxi^ X^i;d esj oi fe^IIsqinoo ecf IXe4a oifff) lls^aiaijrf aesn^tlw sil> ^ttf 
§is±iisB©qK: ojtd-olvifoo rioua lo j-nssicsoo lexicfo XQ« Xcf 10 

livx© & pLt&di eiflT« v; ^£^£ ,S^£ ^^l ♦qqA ^XII 'JOX fiiggcfiF.&tta 

•:3 ;'ori d"OJBl: ij£ts 92liX hsYOiq ©cf '^Bffi: rtoXcfoivnoo 9xC;|- 1e io&l mi seao 

JbsIXsqjsoo 9C XXada oiiw ^IXeaiKlri aaanJ-Jtw &di x^ iBsiilS) ^bn.oo9i 

~0£V:.i -0 rem. 'lo cJ-xiissXa^oo aaand-Xw T©fid"0 s^^ •- • ,-od-siefIj ^A-t^'S®^ 

,0 imoo %9iMo t^£ ■«:■:[ -lo ^-^noflLtJ-asi sisX4»Beqffii as ^floiJ- 

^^I^M ,y osisD ,03lJ3 ^seE ''(,^3^ ,^^"c nlll Xc2 j^XXg9£..AV_xMl£S) 

o"! nolcfoivaoo «jdT" :£ii:sa d-'moo q4^ sisuriw ^^I ^801 ^SQj; . ,'dX. 

■^^lao Jblifoo ^wbX xiojKSc: -jasbive gnlrioBQCiOJ: as feeie'llo nsxiw ^eini'iD 

edS ^i-X.^iiasbl bae, noId-oXvnoo to bxoo^jti odi §aJti£'llo -^cf bsveiq ecf 

fcssiic«I:lj:xs noXcf.oes ovods sdT .no2i9q i)sJ^oXvno3 siid- as essjcijIw 

.■^offilc^3s:t a«[M0B9qflii 2jb rjoXc^pXYflDp 40iif2 scXworia lo aJbocCism larid'o 

^■itt ^^.aew b&^Bie sTOtf^ 8©,^,S^ Ip;;;!- sdd al i's.mzi ©iici" "*o aaiXif-^ »x£T 

f>9n9llo , , , 

10I noiijo-' ' ::aJ' c)-q90X9\lGoiq on acf bXuoo ©•tadJ 

■aend-iw siul^ lo y;fiomlia:i exlT ,T:o'xia 2j3w oisifi alxij nl ,a«iiio 

d^riSlis ;to9ll9 ei do'.) "*d'n«J"ioq£iX bna Xfil'ied-^at ««* 

Iyj:ii:siio &eJ:^l:i-^'V e ' 'rtlJii.tjeXq xil .•'^ineasosn 9i®w cTX IX i)SCfXo ocf 

981/jsoecJ ©bjcj e?.e.6 od" baviol ebw ©ri :tBri^ bsgeXXs sd inlaXqctoo 

l&il'iBm eriJ- lo soflBUfiiJ^noo exfd- beiefxnsi J-nBjbnslef) lo iovbaooalBi odi 

mi&loi&Sn.uoo exicf od- loweng |)g j;g;J;T:f>v aM jpl .©XcfBiBScfuif aaoWsX^i 

E08XJBO loi" ^^£^X t\'i^ igifiuicf©'? flo ftllw eld cMoX sd cfBrfcT e^ssXXs ad 

justifying him in bringing the co-habitation to an end," But in 

the verified amended complaint, filed over seventeen months after 

the original complaint was filed, he alleges that he lived and 

cohabitated with his wife/February 24, 1939> when she deserted him 

and persisted and continued such desertion "to the present time." 
The special commissioner appointed by Judge Desert reported to the 
court that the complaint was insufficient at law and stated no 
statutory grounds for divorce, hence the change in plaintiff's 
theory of fact as to how the separation came about. His verified 
original complaint and his verified answer to the defendant's :_ 
counterclaim show the falsity of plaintiff's testimony that his wife 
deserted him and the home, l^'i'hile we are satisfied that defendant 
spoke the truth when she testified that plaintiff, without just cause, 
deserted her and has persisted in the desertion notwithstanding her 
many pleas to him that he return, we are also satisfied that plain- 
tiff's own testimony did not sustain his charge that defendant 


deserted/without Just cause. The pleadings of both parties and 
their testimony make it clear that the parties lived together as 
husband and wife until the latter part of February, 1939* or the 
early part of March, 1939. Plaintiff admits that on February 24, 
i939> M.S wife stood in the doorway and tried to prevent him from 
leaving and that he pushed her away and lef «. Defendant denies that 
the alleged incident of that date happened and states that they had 
no radio in the apartment. During the entire time the parties lived 
together the only trouble or dispute of which plaintiff complains is 
the alleged incident of February 24, Such a trivial incident, even 
if it happened, could not justify him in deserting his wife and home. 
For aught that appears in his testimony defendant was a virtuous, 
sober, affectionate wife, and never caused him any trouble until 
February 24, 1939. It is plain that some other cause than the 
alleged incident of that date brought about the separation of the 
parties. Plaintiff admits that some of his wife's clothes were still 

fi;: "x-3 ".bris a. .i:Js:f±cfBfi-oo adct anlgniicf nl raid gnl^'i-t^aj^t 

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3l exilslqsioo lllJuifiXq iioli^w '>o 9d'j:jqelfi to sicfirond" xlno sxlcf iexld'»30j- 

nsvs ^ci'xisbiofljt i«ifJ:!E;J- s itojt;& ,^? -ijiBiracTs'^ lo j-ceJb.toal bsssJ-Is QxW" 

. r^iofl fjTiB 9l±w aJtii SJGild^iseef) nl iclxi x'lJt.tsut -ion bluoo ^fcsnsqqari d^i 11 

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XliJa aasw aerij-olo a'sllw alri lo ©Eoa cfj^xlcf ad^lmfcs "illJ-nlBll ,3eliiBq 


In the apartment when he left on March 1; that he knew that his 
wife was living in the apartment for two months after he left and 
that he did not go there to see her. That she paid for the rent 
of the apartment for some time after he left is not disputed* It 
is significant that after he left the heme he made no effort to 
resume the marital relationship and that he does not deny her testi»- 
mony that she asked him a good many times to come back and that he 
refused to do so. He did testify that in February, 1941, he met 
his wife upon the street and said to her, "Why don»t you quit that 
[working in a tavern"' and see if we can*t get together somehow," 
and that she said she would not and that all she wanted was her 
alimony. Defendant testified that her husband never asked her to 
come back, and one cannot read the evidence without coming to the 
fixed conclusion that after he left her he never desired nor in- 
tended to go back to her. The fact that she waited for him while 
he was in prison is a strong circumstance in favor of her testi- 
mony that she desired her husband to come back to her. The fact 
that plaintiff, although he was able to support his wife, fought 
e-verj attempt to make him support her is a circumstance tending to 
show that he was trying to starve her into granting bjm a divorce, 
and in this connection it must be noted that he was found guilty 
of the criminal offense of non-support of his wife, "ilien the 
court announced that a decree of divorce would be granted plain- 
tiff, the latter 's attorney immediately stated that the amount 
due defendant would be paid. We entertain no reasonable doubt 
tliat had the wife asked for a divorce plaintiff would not have 
defended the counterclaim, ?fe disbelieve plaintiff's testimony 
as to the cause and manner of the separation, and we believe de- 
fendant's testimony that she and her husband always lived happily 
together until she found out about "this woman," and that plaintiff, 
without Just cause, deserted her, \1/hile the wisdom of her desire 
and hope that the marital relationship be restored might be 


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soT :tilg±n fcsiod-eei ecf qixisnoidslsi IsJliaffl sri* d-Brid" sqori bns 


questioned, her right, under the law and the evidence, to demand 
that no decree of divorce be entered in this cause cannot he 
questioned. Counsel for plaintiff contends that only plaintiff 
and defendant testified as to what brought about the separation 
of the parties J that the trial court believed the testimony of 
plaintiff, and that under such circumstances the Appellate court 
will not disturb the finding of the trial cotirt in that regard. 
Akin v» Nolan . 202 111, App, 157, is cited in support of this 
contention. An abstract opinion was filed in that case, but it 
sufficiently appears that neither of the parties was an habitual 
criminal. However, it is not the law that we are bound by the 
finding of the trial court because only plaintiff and defendant 
testified as to the cause of the separation. 

Plaintiff contends that the testimony of the witness Schmidt 
corroborates plaintiff's testimony that defendant came to the 
Marathon Club, threw down two shopping bags containing his clothes, 
and told him that she was "through* " It is a sufficient answer to 
this contention to say that we believe defendant's testimony that 
the testimony of plaintiff and Schmidt in reference to that 
alleged incident is false. 

We hold that the granting of a divorce to plaintiff in this 

case is so unwarranted under the facts and the law that it amounts 

to a miscarriage of Justice, We further hold that what we have 

just said applies with equal force to the action of the trial 

judge in denying defendant a decree for separate maintenance^ 
The decree of the Superior court of Cook county entered 
October 31, 194-1, so far as it grants a divorce to plaintiff and 
dismisses defendant's counterclaim for separate maintenance for 
want of equity, is reversed, and the cause is remanded with 
directions to the trial court to enter a decree dismissing plainr« 
tiff's amended complaint for want of equity and granting a decree 
of separate maintenance to defendant upon her counterclaim, and 
for further proceedings in the matter of the additional amount 
to be allowed her for her support and solicitor's fees, 

Sullivan, P, J„ and Friend, J„ concur. '^^^H DIRECTIONS. 

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^X-W?I ^X£ fi^aOTOO CaHSTHE saHOKa 




a copartnershig^'^^ 



An action for attorney's faes under the Attorney's Lien "" 
Statute, The trial court sustained defendant's motion to strike 
plaintiff's amended statement of claim and plaintiff electing to 
stand on the statement an order was entered dismissing plaiiw 
tiff's action at his costs. 

Plaintiff's amended statement of claim is as follows: 
"1, That he is an attorney duly licensed to practice law 
in the State of Illinois and that he has been actively engaged 
in the practice of law in the City of Chicago and State of 
Illinois since the year 1935« 

''2» That on May $, 194-1, one Evelyn Smith, also known 
as Evelyn Singleton, mother and natural guardian of LeHoy Smith, 
a minor, deceased, entered into a written contract, a copy of 
which is hereto attached, and by special reference incorporated 
herein as Exhibit *A', employing the plaintiff as her attorney 
to represent her In a certain claim for the wrongful death of 
said minor on or about May 2, 1941, due, as it was claimed, to 
the negligence of the defendant co-partnership, 

"3« That the said Evelyn Smitli, also known as Evelyn 
Singleton, was the sole beneficiary and heir at law of the 
deceased minor, said minor having been born out of wedlock, 
"4, That by the terms of said contract of employment 
with the mother of the minor, it was agreed that the said 

Evelyn Smith, also known as Evelyn Singleton, would pay as 


. at 

.:. . .^'..-^ ^...- r ilJfctxilaXq 

■■.kj ;"• w"* . 

r rr 



compensation for plaintiff's legal services a sum of money equal! 
to twenty-five per cent of any amount realized from said claim by 
settlement or thirty-three and one-third per cent by judgment* 

"5« That, pursuant to the Statute "-^ * *, plaintiff caused 
to be served upon the defendant co-partnership by registered mail 
a Notice of Attorney's Lien, a copy of which is hereto attached 
and by special reference incorporated herein as Exhibit •B»<, That 
by the terms of said Attorney's Lien Notice, plaintiff claimed a 
lien of one-third of any amount that may be recovered by suit or 

•'6, That upon being so engaged by the mother of the deceased 
minor, plaintiff investigated the claim, interviewed witnesses, 
caused photographs of the premises to be taken, which were taken 
on May 8, 194-1, made a complete investigation of the law with re- 
ference to the liability of the defendant copartnership for causing 
the death of the minor, inspected the minutes of the coroner's 
inquest and performed other and further legal services in the 
prosecution of said claim* 

"7. That on July 9, 1941, the plaintiff conferred with the 
insurer of the defendant co-partnership and was then and there Inr- 
formed that the claim had been settled with the administrator of 
the estate of the said minor, deceased, for the sum of Five Hundred 
and no/100 dollars. 

••8. That under and by virtue of the Notice of Attorney's 
Lien, heretofore set forth, and of which the defendant co-partner- 
ship long prior to the settlement had full notice, the plaintiff 
is entitled to hare of and from the said defendant co-partnership 
the sum of One Hundred Sixty-Six and 66/100 Dollars} for which 
amount plaintiff prays for Judgment*" 

"Exhibit 'A» 

"Chicago, 111. 5/5/41 

"I hereby retain and employ Burton R<, Abrams attorney to 

xasjp® \sin 



ii^L£i&j/ ■ ■■' loqu imvisiw ^<d oi 

riixsa-ioiiA bbuB to Mi€5;f axict ^^ 

! '^lisi^-^^^rio to nsii 

ni-^G noqij cfadT 

v«S'^t8»irflJt ttJ::fnii5lq ^^ion.t?5 

-:.t to BjfqBigo^toxIq fosEjJso 

^s': r>d-eJ[q»ioi3 » ©£>««£ ^X-^^I ^8 xsl^ no 

^dS at ZBQtvi.i'H Ijss©I 'iBdii-ijJ. has leilio fes/aiotieq bnn itosfpal 

.Misis &lBa to noLtuoeconq 

^ ' ^9 t:X^Ti no ^axT' 

-nl eis ■ * j^ijl^ii©t95 isdi to nsruyeni 

to ^o.tB'E^aliilicfcfi 9iii dcJ-Jtw fe®I:f;t^i« nsetf &fid slain »di i&iii hemiot 

} ^ -9es»o«!j ^toata: btm erii to eitEd^Be sd^ 

.srLsIXoJE) OOX\oii £afi 

a»X'c*io;i:t; to soiJ'ov!: ,or:;|- to si/diJtv -^d fccfi isbm; JfiriT ,8** 

-*i^£iiiBq,'-ot Sa.Bbao'iesL :tm ^iid'^rot cfea oioto^s^orf ^nelJ 

ttXcfnl^Xq silct ^BsUoa IXi/t f-^iri :tit»fli«Xi^»8 •^cf o* loi'iq isnoX qlrie 

qjbdei©atisq-oo iambtt' di mont fcrrfi to 9Vsrl ocf L©Xjl;tn9 8l 

Hoiriw not ;et[;jXXoG aOX\dt> Ma itlS-t^xXS teibmnB. ejcrO to ai/a erii 

*> n^aces^bijt lot e^B^q ttlcfixXfiXq ^izvocu 

XI^NcV. « ,O3B0l^0" 

prosecute and/or settle all suits and claims for damages against 
Berg's Grocery & Liquor Store for causing the wrongful death of 
nqr son LeRoj, arising out of an accident, which occurred at or 
near 314-7 Rhodes Avenue (rear) on the 2nd day of May, 194-1* 

"And I agree to pay hia as compensation for his services 
a sum of money equal to 25% of any amount realized frcai said claims 
by settlement or 33-1/3% ^7 judgment, 

"Evelyn Smith, mother of 
LeRoy Smith and natural guardian 

"It is further agreed that no settlement will be made without 
the consent of the claimant 
Burton R, Abrams" 
Here follows, as "Elxhibit 'B'", Notice of Attorney's Lien* 

Defendant's motion to strike is as follows; 

"Now comes the defendant * « * and moves the Court to Strike 
Plaintiff's Amended Statement of Claim, for the following reasons: 

"1« The Attorney's Lien therein referred to, was addressed 
t© 'Berg's Market and Liquor Store/ which is a co-partnership, 
and said Attorney's Lien was therefore ineffective, as it must 
be served on one of the 'co-partners', and was not so served. 

"2, That the 'Contract' referred to, was to prosecute or 
settle a claim, against 'Berg's Market and Liquor Store*, which 
is a co-partnership and said 'Contract' was therefore void as 
against either or any of the co-partners, 

••3, That said 'Contract', and said 'Lien' purported to 
make a claim for damages, on behalf of 'Evelyn Smith, as Mother 
and natural Guardian of the deceased minor,' and not on behalf 
of Evelyn Smith as beneficiary of the Estate of said minor, 

"4» That the settlement, as set forth in the Amended State- 
ment of Claim, alleges that the settlement was nade with the 
'Administrator of the Estate of the minor,' and was made under 
an Order of the Probate Court of Cook County, Illinois, and. 

■:''RC..t'o^.o a-9gr,CL££) 10?. ct;. 

aoDlviff; all' •io'^ n<:; xj^^sqffioo as 151x1 XBq o^ es^gj? I fenA" 

saaiiiio felfig ov 



.:U«i ■)«•;; Isl) Siy SeSO© WOU" 

risjuir ^faio^c. ^ox^r^. ..u.o je^-^v i^rg^^eiS* ;f8is.ts8£ ^mUJt) & Bl&isB 

U&d&d no iom boB ^tqslXsi fc&assDsfc sd^ to xiijJllJWiK) iBTif^Ac do* 

-- .^fiC^:- ftoferteoA 9xi:t fll £tf^ol :fe£; e^ ^cfxi^sli^se «x<^ ^etEl .♦« 

8d^ il:flw sfc«a SAW }am^l&S»ti &dS- cfsd^ af^gsIXfi ^eObIO lo cMimi 

isfmj 9f>fiia 86W fina ^lonijo oricT lo »:f«iag arf* lo iocfs:t;f8laiatfcA» 

t^xtfi ,eionlXXI .y^ow^O atooO lo tijwo s^acfoa^ arirf lo ^»b,0 n^ 

therefore, any claim for Attorney»s fees imist be made against 
said 'Administrator* , 

"5. That the cause of Action originally was an Action for 
damages for wrongful death, and said matter of Action for wrong- 
ful death can only lie prosecuted by an Administrator or Legally- 
appointed 'Next of Kin* of the deceased, and the Mother was not 
competent to contract for the services of an Attorney on behalf 
of the Administrator of the Estate of said Deceased, 

"6, That the Order of the Probate Court, approving the 

settlement, provided for the amount of Attorney's fee to be paid, 

and in addition thereto it shows that the Mother was not the sole 

beneficiary, or heir-at-law of said minor, but, on the contrary, 

that said minor had a Sister, by the name of 'Selma Smith', as 

is set-forth in said Order of the Probate Court, the Records of 

which Probate Court this Municipal Court must take Judicial 

notice of, 

"7« That the Amended Stataient^Claim states that said 

'Contract' was by and between the plaintiff herein and the 

Mother of the deceased, 

"8, That the Attorney's Lien alleged to have been served, 
is therefore not in accord with the contract-of -employment, 
which is the basis of an Attorney's Lien, 

"9. That there is no 'Contract' in existence between the 
plaintiff. Burton R, Abrams, and the defendant herein. Berg's 
L'arket and Liquor Store, and therefore this Cause-of-action 
cannot be based on a 'contract,' but should be based, if at 
all, on, or be a suit on, an Attorney's Lien, 

"Wherefore, the defendant ^oves the Court for Judgment on 
the pleadings, or in the alternative, to strike the Amended 
Statement of claim and dismiss the defendant," 

Upon the hearing of the motion to strike defendant was 
allowed to file a certified copy of certain proceedings in the 

<l - 

. ''' bA^ JE)i£e 

^.Gfiec no T^snTOd-.- . wrfJ' lol .*90i;tiioo o^ d"iie:^eqffioo 

,l)03£6S©Ci tdsa.. 1© jpd'fld'aK edi to io.tB*Kf&xfllai)A sd^ lo 

^t;*" --j-f'-- --'"'-'^ -■' .^ -'■-' ^Toni:,:;! tl£H ■>© wjsl—r's-iiafl lo ^xisioilsnscf 
' ■ . : . --ui- xcf ^^»ctal£ ja i>aff 'loaim fcxoe ;t.arid' 
^ . rij lo TotiO Li:'-?: al iltiol-^se si 

,'^') f< r Jon 

)^mm i ,'■■■ 

,,- -.. . ' o&titno^^ 

.. ^« ....... ..'....,.■„,, '^^^ -^':^ c^srfT .B" 

'■ : ■ '-'^^nioJctA iijb '10 aJfcajBCf 9Hii si rir^irf*' 

.'Sis€ ^tfisteif J-nefcualsi) iwij bna ^eai^Ticf'i ♦fi flG^iwS ^*itl;tnlalq 

• '^ ' . ^. ...^ ...... '^J-o.i.i^fioo* is no Jbessd ?c( iomiBO 

, ^U 2''^©fi[ao.>;fA flja ^iio cflije s od *to ^no ,11 8 

adi' iLi K§££l6s»&s>oiq flJLs:t'i«o lo ?tqoo fc©lll*t'j&o ft sill oi £>«w«XIb 


Probate court in the matter of the Estate of LeRoy Smith, and 
defendant's counsel referred to the said copy in his argument 
in support of the motion to strike. From this certified copy 
it appears that The Trust Company of Chicago was appointed by 
the Probate court Administrator of the Estate of LeRoy Smith; 
that the sole asset of the estate consisted of the cause of 
action against defendant; that the only heirs at law were Evelyn 
Singleton, mother, and Selma Smith, four years of age, a sister; 
that the defendant had offered in compromise and settlement of 
any right of action against it the sum of $500; and that the court 
ordered that the cause of action be compromised for $500, The 
certified copy also contains the following: 

"It is further ordered that said administrator pay out and 
expend the proceeds of said settlement in the manner following: 

"To Clerk of the Probate Court Initial fee of 
$10,00 paid by John H, Kay for court costs 

"T© The Trust Company of Chicago, Admr's 
fee $ 15»00 

"To Daniel W, Ross for proof of heirship 3*00 

"To John H. Kay attorney for professional 
services rendered to said estate and for such further 
services as shall be required until said estate is 
closed, a sum equal to 25% ©f said settlement $125*00 
(See Note A below) and reimburse him fort 

"Fee paid to Clerk of Probate Court 10,00 

MM M f^^ certified copy of order 1^00 136.00 

"To Evelyn Singleton, mother - her distributive 
share amounting to $115. 34-, and in addition thereto 
$30.66 from the distributive share of Selma Smith, 
minor for her support and maintenance 146*00 

"To Selma Smith, minor sister of decedent, 
balance of her distributive share, deposited in First 

jaamLii': blMS &£ii oi be-iicli-.i ieatu/oo e'^aeJbas'lsfc 

■^'^00 bci1l:)"7jso si'It^ arbif ,cjliids o? Tiol*cm odi \o iioqqsja nl 

l;o Q&nnc Cii.:' ' rft lo J'^aas ^ioe ©rid' d'add' 

a%i€»v5r: r-.T'^ ; 'ir^imelGb italsi-^a actios 

ad-aoo .,.„.- aol ^^ ,'I Mol- x*^ bXsq 00,OX.t' 

. : , ss'i 

ciida^lefi lo 'icoig -lol eaofi ,s XfelaaCi oT" 

laficT'iul iiSif^i 'lo'i fcoa &i2ic& &t«a o^ fedsfoaon aeofviae 

Oi,0X CJ'JCJJOO »J-B^oi<? 10 3fTOlD €wr fclsq efi*?" 

avid udlii alb Ti&A « n&d;J<«£j ^ao^telaaiS xr^IevSv oT" 

Qisiesii aolilbbm al baR ^♦C.c-CI^ f^i saXintroB« »iada 

^dcflcife iSisXoC Ito s-xssfie svliudliietb edi moil bb.Oi^ 

OQ^b^l Boaaa^ialaa bns itunqsjc %9d 10I loatsa 

^iaeb90&b lo i©;taia rraxilm ^AttmS' jaaXaB oT" 

ifgni*? Hi bsd-laoqefc ^©ruaie ©viJi/oin^Taib lexl lo •aasXad 

National Bank of Chicago, subject to further order of 
this Court or until said minor attains her majority $200 >00 

"Total Disbursements $^00 #00" 

Upon the motion to strike the parties filed written argu- 
ments, which are incorporated in the record. The material part 
of the written argument of defendant's counsel is as followst 

"In the instant case, the mother, "Evelyn Smith, was never 
appointed Administratrix, but the Trust Company of Chicago was 
appointed Administrator, hired its own Attorney and settled the 
case, ander an Order of the Probate Court of Cook county, Ill^j 
said Attorney of the Administrator was paid his fee, out of the 
funds of the Estate, by Order of the Probate Court, and the funds 
of the Estate were distributed to the beneficiaries, and the 
Administrator (Trust Company of Chicago) never ratified the con- 
tract that is alleged by the plaintiff in the instant case to have 
been made between himself and Evelyn Smith, the mother, 

"We respectfully submit that under the Decision of the 
Appellate Court in the case of Tuoh y v. Chicago & Jollet Electric 
Railway Co, y [200 111, App, 446] which we have quoted above, plain- 
tiff's Statement of Claim, in the instant case, should be stricken, 
and that judgment should be entered for and on behalf of the 
defendant, for the reason that plaintiff has no right -of -action 
against defendant,** 

The motion to strike was in effect a demurrer to the state- 
ment of claim and all of the facts well pleaded in the statement 
were admitted by the motion. It is hardly necessary to state 
that the allegations in the motion to strike as to alleged pro- 
ceedings in the Probate court and the certified copy of proceed- 
ings in that court could not properly be considered upon the 
motion to strike, but it is clear that they were considered by 
the trial court in determining that motion. Even If It aould be 
held that the alleged proceedings in the Probate court set up a 


,, ft el-Co'. - •• , /,V *"■ 
-"^liil.^ ^;fVod» bfe^oi.'p 

9if;t lo 11.- 

"t:f?,:rajRi sfif* fit" 

'^fijcfiij • / e:tfi;tsa feri^ to 

. :r^iJ ;tljGiHi;2 tXIw"S:f oaqai^t ©W" 

! lo lis fcftfi ciicXo lo tnSGf 
■■A:5 fons ;t^JDoo' ?>is<foi<T[ ferfi til tyxXb^^t 


good defense to plaintiffs claim, as defendant contends, the 

proper way to make such defense would be by answer* 

In support of its contention that "the contract with the 
mother could not be the basis of an attorney's lien against the 
defendant •* * --, that the only contract that could be made the 
basis of an attorney's lien in a death case must be between the 
attorney and the administrator of the estate to prosecute an 
action for Tni-ongful death," defendant cites only the case, Tuohy 
V. Chicago & Joli»t Electric Ry> Co., 200 111* 4pp. 446, which case, 
defendant argues, is directly in point and sustains its contention. 
In the Tuohy case it appears that one Miner, individually, and not 
as administrator of the estate in question, entered into a contract 
with Tuohy to represent him in probating the estate of the deceased 
and also to represent him in an action for personal injuries that 
resulted in the death of the minor; that after the making of the 
contract liiner was appointed administrator of the estate of the 
minor and as administrator he compromised the claim. The opinion 
states that it does not appear that Iliner had any in terest in the 
plaim , which was compromised and settled^ and that he never recog*- 
nized, ratified or adopted the contract after he was appointed 
administrator. The Appellate court of the Second District held 
that under the facts the claim of Tuohy was against Miner indivi- 
dually. In the instant case plaintiff's statement of claim alleges 
that Evelyn Smith, also known as Evelyn Singleton, Wr-s the sole 
beneficiary and heir at law of the decease d, minor, said minor 
having been born out of wedlock . The Tuohy case is not in point* 

Plaintiff contends (a) that the contract with Mrs, Smith is 
valid and binding; (b) that "under the Injuries Act of the State of 
Illinois, a suit for wrongful death must be brought in the name of 
the personal representative of the decedent, but this action is for 

the exclusive benefit of the beneficiaries named in the statutes, 
!nie right and authority of the administrator who Is only the 

o&.-io do hi 


.■r.-^:^ soCbjki oi X^^ isqoriq 
•■■ ' > j*ioqquB til 

■ai:£rr5jB ©xit bciM xeano&iB 

,,1 ^>-. 

J'ftioq at ^toxi ai esse ^ifjiiii^ •■'•. *dS9MSiS.J^^.^ML fl?.Q<l M^cLlSi v-g^ 
^asd-tfis;??: Mut iii bemaa asIisioHssetsd 9ild: lo j;tlt8n©cf eviairloxe till 


representative of the beneficiaries to compromise or settle such 
a right of action is by no means exclusive, as the beneficiary 
may do what the trustee may doj" and (c) that Evelyn Smith, the 
sole beneficiary, had a "claim, demand or cause of action" against 
defendant, as set forth in plaintiff's lien notice, and that as 
the sole beneficiary she could contract for services of an 
attorney, as the beneficiary may do what the trustee could do. 

In Mattoon Gas Light & Coke Co, v. Dolan^ 105 Hlo ppo 1, 
4, the court said: "The right and authority of the administrator, 
who is only the representative of the beneficiary, to control the 
suit or settle it, is by no means exclusive. The principal may 
also do what the agent may. The beneficiary, if under no dis- 
ability or limitation, may do what the trustee could do," And 
the court further held (pp. 3, 4)s "The right of a sole benefi- 
ciary of a suit, who Is under no disability, to settle and accept 
payment of the unliquidated damages due her, it seems to us is too 
plain and simple to need argument or authority in its support," 

In Voorhees v. Chicago & Alton R, Co. . 208 111. App, 86, the 
court said (pp. 93, 94): "Marcus Ryan, being the sole beneficiary 
and under no disability, had the right to settle and to accept and 
receipt to defendant for any damages, if he was entitled to recover 
damages for the death of his wife and children, if the same had 
been caused by the negligence of defendant, Voorhees, as adminis- 
trator in the several estates, was but the legal agent of the 
beneficiary, Marcus Ryan, ( Mattoon Gas Light & Coke Co. v. Dolanj. 
105 111, App. 1,) It is not always necessary that the parties to 
a suit should be nominally the same in order that one recovery 
may bar another," 

In Ryan v. Chicago^ M.,. St. P. & P. R. Co. ^ 2^9 111, App. 
472, the First Division of this court held that a contract between 

a widow, the sole surviving beneficiary of her husband, individu- 
ally and as administratrix of his estate, and an attorney. 

.■:Eirol'i©r .yytaf/lDs® 3fla«i2 on ^d ai fjoi^J-Sii 1:o ^riaJti a 

y:r; IfifrJLoftl^q ©ilT .©Yisjblax© anaBfs on ^d si ,il alc^^^fra 'lo ;tlif« 

" "5 on Trjbnif 1:1 ^'fisiolleaadf ©/if «xjscj d^iiosB eiid" ;^isriw ol) oels 

"I'v^tTStf sic. -5. • s:) ^X-srf lerid^iJJl ctixjoo 9ri;t 

*;.7 j- -5 3:^ ^t'^iXiduslfe on "i.f»JbfiL! al odv/ ^jimt. a '•o ^iibXo 

:: ^-acf ex/Ju a©9swiC> f>»;ti»MiipiXflX/ ©xict lo :fxi5<ur^sq 

. -zoqqsjs gH nX X'^'-i-^^^'^'^ '^^ ia.czdJi^'ist fc©ac oc? ©Xqinle ba& nisXq 

^08 .«qA .XXI SOS ^Ag^„^.^.^,:^„_..^^,.i^a^cMk^^ fteeAff>Ql nl 

biiB iqen^jM oi imB el^i&B ojj* id^tx fniS beA ^x^llids>Blb on lebnir baa 

-;..^i -ii. V. .... tri^Ji&Xlfis has Btt^ aM lo nj^ijeb 9di lol aegsjasft 

Ar,-;- •=vn tn&gis Xss"X Qdi i'K'ti esw ^aWfiCfB^ Xfii:>v©e an'i ninoJ-flT* 

a '"^i;;ji*;q arirf' ;t]8rld ij'isaae>»sn ax^v^ij ion el d"I (.X .qqA ,XXI ^OX 


-9- 1 

employing him to prosecute a suit or claim for the wrongful death 
of her husband, is valid, and may serve, upon her settlement of 
the claim direct with the wrongdoer, as the basis of an attorney's 
lien, although the settlement was made without authority from the 
Probate court. The opinion in that case states (pp. 477, 4-78, 


"In the Washington case HVa shine ton v. Louisville & N. Ry> 
Co.] (136 111, 49), suit was brought by the administratrix to 
recover damages for the benefit of the widow and next of kin for 
wrongfully causing the death of her intestate. Judgment was 
entered in her favor for $200 in accordance with an agreement filed 
properly entitled in the cause and signed by plaintiff as adminis- 
tratrix and by herself in her individual capacity. It was con- 
tended on behalf of the administratrix that she had no power to 
make a binding agreement for the settlement of the case; that 
before she could be authorized to make such a settlement she 
must secure an order from the probate court. In passing on this 
question the court said (p, 56): *We are of opinion that the 
statute referred to can have no application in cases of this sort. 
The recovery, here, was for the benefit, exclusively, of the widow 
and next of kin of the deceased person. The section of the statute 
referred to, requires the administrator to secure an order of the 
probate court authorizing him to settle or compound claims due the 
estate; and it is manifest, we think, that the claim here sought 
to be recovered was not a claim due the estate, within the meaning 
of this section. It is impossible that the estate should have 
derived any benefit whatever by a recovery in this cs- 3, True 
it is that the administrator would be required to ar it to the 
widow and help, but in no legal or proper sense to state of 
the decedent, 

"•This precise question was before this cour ^ase of 
Henchey,i admx, v. City of Chicago. 41 111, I36, « struc- 

J:'siR%:^aisLxmb& add: x^ tflgifoia 2iS< ^. ,.;■;: ^cX) r.oO 

vioh'lr. ' : (d'vj ,q) blea tTxroc ©il^ xioXJgsjjp 

.... ^xJC^'V-^s^-^^^-^-^ t^ilsjasc ^ ^^-zpvoosi ©ill 

•tjj.-tfij8 &i^ xo fxolJ-oos ei. . c.i«?^ bss.&iiii»b &di lo xiiil lo ix-^a baa 

iiaxiOB fasri ffiislo eald" ^sri.t ^:^tXfi^ ©w ^^e^liimta eX Jl boa {^^iBiam 

; -i;.-;:' 9r!;t niff^iv; ^-;i-A;?^^f ei^ & p b ^ SilblS & ^^'- ^-i« ise^riovooei scf o;^ 

.. i&d'd &14lB&oqjBRi e... .aoX;/09« eixlJ- to 

srL-f L .., oi b,^iXJtfp9T 8cf &Xjw>w lois'ii^ialcaJbA (nH iadi eX i^X 

"II ^^L O^" ssenf^iP- -Lfir o-rr; 'lo T.r->»;j.t on rf f Jfi-n' ^'Xif^d ha& WObXw 
'iw ._ ., . , _r ..... ■"■■' ror-na sJUi- ' 



tlon there given to the statute, author iaing recoveries in cases 
of this sort, has for very nearly a quarter of a century been 
accepted as the law. In that case a stipulation was filed in the 
absence of the plaintiff or her attorney, and the judgment of the 
court rendered thereon. It was sought, subsequently, to set aside 
that judgment upon the same grounds here insisted upon. In that 
case, after disposing of the other grounds upon which it was alleged 
the judgment should have been set aside, we said: "Neither can we 
agree with appellant's counsel in the position that the plaintiff 
had no power to make the stipulation by which the suit was dismissed. 
The statute vested in her, as administratrix, the right of action, 
and the legal title to whatever damages were recoverable, This,^ 
of necessity, gave hep the legal right to control the prosecution 
and disposition of the suit, \\liether the children, who, with her- 
self, were interested in the distribution of whatever damages might 
have been recovered, can call her to account for any error of judg- 
ment she Eiay have committed in making the settlement, is to be 
decided when they make the attempt,"* And the court held that the 
agreement made by the administratrix was binding. 

"In the Dolan case (105 111, App, 1), it was held that the 
administratrix, who was the sole beneficiary of the suit, had authorit; 
to settle a claim for damages on account of the death of the adminis- 
tratrix' intestate. In that case the administratrix recovered a 
Judgment of $1,000 for the wrongful death of her intestate, and on 
appeal this court said (p. 3)1 'Appellant (defendant) offered in 
evidence an instrument of writing, proved to have been executed by 
the widow, by which she acknowledged the receipt of $200, paid her 
by the appellant, in consideration of which she thereby released 
appellant from the cause of action incident upon her husband's death,* 
The court held this agreement was binding and reversed the judgment, 

"In the instant case the administratrix, Mrs, Dow, is the sole 
surviving beneficiary of the deceased and under the law as announced 


&e&4 ^f' V •v:iis9f! Y,7«v aol sJHi ,tT0 2 aJufcf to 

siij- Jit *«I ■ af-o t'f'" .il ,n3l Bd:^ se fcnd'«jft0OB 

bsasXXB asw cti: dDMw ifo'^.o afem' to »di lo jcisoqsifc i9.Jls ^9»bo 

. &9sei:aiBli> sj^ .ft /isMi? tf^ aoiJtjsXm-tts ftiid^ ©Jiaa o^ -jswoq on bari 

^ . ^LdM'i9MC09'i :«.v9;tjs£lv/ ©# »£SLf iB-^el 9dS baa 

-^eii rf:?ty? ^oitw ,jrtoi£feXldD .Jijtje ad:)- "/a aoiv*±8oq8l5 bos 

9rl:f ^^iiiCf Msrf .:'sj''c ' .j^ed-^a edd' »3lmsi x^d^ noriw bsbloeb 

.t'soii,Tiie bsid ^Jiee ^ ±si:^ei3fcd »Xoe sdi^ b&v oifw ^aciniciisinlabs 

^: Mis'Jlo (^flabaslei?) J.aaXX9«[^A' ..,. .-,) bXae inssoo nM& I»«qqB 

•'-■(< blaq ^-. -.. .^ iqjf-o&t silj besfreXwomfoe edfi rfaXifw xtf ^wobiw 9tii 

...-ias&l^i Xd^im:j efiSe riotdw Icj atii.-^siabietioo nt ^^HsXXsqqfl fnii \(i 

. /3ab a ' fenarfaiitil HBd noqjitr ^fiefcJtwsJ aol;toa 1l« esifeo ©li^ ao'il ^HBXIsqqji 

w'nefflEgbi/t ^'-^ - '-'*■->■•••"■"■ •■'-> -{-.r. ^,- or,^ d-nam-"--^-" ■■ '-'-•'" ■••J''' ^"■iroo ©liT 

; orwQim£> Bn wsX &il;t i&btw ba& b»«B9«^b eff^ to x-^BJtfltortscf snlvJtvTi/e 


in the Washington and Dolan cases, supraj ^ we hold that the contract 

entered Into between Mrs, Dow individually, and as administratrix^ 

with Ryan, was binding and valid." 

As Evelyn Smith had the right to settle the claim against 

def endant# and as such settlement, had she made one, would have 

been a bar to any suit brought by the administrator of the estate, 

there would seem to be no good reason why she could not hire an 

attorney to represent her In the matter of the claim against 

defendant. Plaintiff's amended claim alleges that Evelyn Smith, 

also known as Evelyn Singleton, was the sole beneficiary and heir 

at law of the deceased minor, and we hold that she had the legal 

right to make the contract in question with plaintiff, that 

such contract is valid and binding, and may be made the basis 

of an attorney's lien. 

The Judgment of the Municipal court of Chicago is reversed 

and the cause is remanded with directions to the trial court to 

overrule the motion to strike and for further proceedings not 

inconsistent with this opinion, 


Sullivan, P. J., and Friend, J,, concur. 


".*^.?:I3V fcft;2 8flt±l)ffld saw ^ua^H ^^Iw 
-•1 boon cis ©tf ©# isi®©8 fcli/ow ©tieiJcJ" 

,n^ll 2't®J*^o^^£ He to 

^'ifisn'. ,, . ^navllli/a 


STCREY, Dee«ased, 

a corpora tionj|^„,. •"" 




This case should have been filed in this court imamJUw 
title, "1 99 Lake Shore Driven Inc^f Appellant, v . Continental 
Illinois National Bank and Trust Company of Chicago and Nelson 
W> V/illardy Executors of the Last Will and Testament of William 
Benson Storey, Deceased^ Appellees . 

Appellant filed an amended claim in the Probate court of 
Cook county against the estate of William Benson Storey for rent, 
interest and attorney's fees and costs, based upon a written lease 
between appellant and Storey for certain premises. The total 
amount of the claim was $2,371,90 and costs. Upon a hearing in 
the Probate court the claim was allowed in the said sum and the 
executors of the estate appealed to the Circuit court of Cook 
county. There the cause was heard djg, novo before the court with- 
out a jury and a judgment order was entered allowing the claim 
ag&lnst the estate in the sum of $1,198 as a seventh class claim 
and the costs of the estate in the sum of $19.50 were assessed 
against the claimant (appellant). The claimant appeals from 
that order. 

The lease was executed on pril 26, 1940, by the claimant, 
as lessor, and William B, Storey, as lessee, and involved a ten or 
twelve room apartment in the building known as 199 Lake Shore 
Drive, Chicago, It was prepared and drafted by the claimant. 
The term commenced May 1, 1940, and expired April 30* 194-1. 

The rental was $3^0 per month, payable each month in advance. 
The lease had the usual provisions that are contained in such 

^ ,.0^1 ^im -..;^ ^ .f>j e^i 

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,ieiiio iiJli 

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lo n?>3 £ i?«v£ovnl bn£ ,s92EpI ca ^tj;®^^^^ «^ BS£lilt f-' ^lOcaoI e^; 

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itoca nl Jbaclsitiioo ei£ ;fBr!;J' anolttvo-rq Iisijsjj «ji* bad •basI exIT 

■ > 

type of lease, Thei^ was a rider, marked "Exhibit 'A*", attached 
to the lease and signed by the parties, which reads as follows: 

"In the event of the death of the Lessee or Mrs, Storey, 
it is agreed that either the Lessee or Mrs. Storey, may cancel 
this lease by giving the Lessor thirty (30) days' notice ia 
writing and by reimbursing the Lessor the entire cost of the 
decorating done in the apartment covered by said less© in the 
event cancellation takes place within the first six months of 
lease. If cancellation takes place after six months the cost 
of decorating will be prorated over the unexpired time," 

Clause Twentieth of the lease provides: "All covenants, 
promises, representations and agreements herein contained shall 
be binding upon, apply and inure to the benefit of the heirs, 
executors, administrators or assigns respectively of the Lessor 
and Lessee," 

Storey and his wife left Chicago for California and while 
th«7 were in that State Mrs, Storey died, on September 3^ 19^0, 
On September 5 John T» TTheeler & Company, real estate agents for 
claimant, received a telegram frcm Mr, Storey, which reads as 
follows: "Please postpone for the present decoration of my 
apartment, I may decide to cancel lease account death ef Mrs, 
Storey, ?'ill decide later," Mr, Storey returned to Chicago 
about September 12, 1940, He held conferences with his attorneys 
and was busy looking after his wife's affairs. The apartment was 
so torn up that it was not in a livable condition, and an employee 
of the agent of claimant testified that Storey instructed her to 

proceed with the decorating of the apartment. This work was done 
at a cost of $148, On September 19, 1940, Mr, Storey appeared in 
the Probate court to prove the heirship in his wife's estate and 
on the evening of that day he went to St, Luke»s hospital, in 
Chicago, where he remained until two days before his death, which 
occurred on October 24, 1940, He was eighty- three years of age» 

ajdj '. ..^v./,;^ -u^ "loeasil exuJ sniuiBdiilsf ^jcf has saWl^w 

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'ot a^itsjife &Ssiis9 ifisi ^T£«£qiBo[) .S T:sl©©f{.t ,T adoX, ^ •rsctar^d'qsa flO 

8s afccsi doifiw ,^sio.: „ ' mil Emi-g^i&S s bevif o»"x ^^a&ttAlu 

Xm to ffolJ-xiToosfi oii.'aoiq ?SJ lol erfog:teoq eas?»I'5" jawollol 

a-ijSfiroJ^ctB Bid ri;tlw s««fieTStaoo Meif sH .0>^I ,5X lodaieiqaS ctAOcTs 

'dsw ifim^-tBq_s, ei<T ^aiiB^I:* g'elJtvr aJW t:®;^!!- guJblcel -^cinf asw baa 

&iiXolqme as L>nB ^aolilbaot^ ^Id&vtl b al ton Bisw ?i :t6ri q» Bioct oa 

sfiol? er.w :rf^ow slifT ,cfn9Kd^i«qj5 s^rf^ ^o siJi^JStoaflb sr(;t ricfJtw fcc^ooiq 

fli fee-xssqqs x^'^o^'- .13 ^O-^^I ^^X lecfcocfqs'a nO ,8W$ lo J-boo b ^s 

fcaB s^fs^ao e't^Uiw atri nl qjtria-ixsrf stf^ avoiq od" J-ruwo a^Bdot*! •fl* 

•sas lo 3i6©x »6ixi^-TFti£8l« esw ©H ,OJ^^X ,^S aedo^oO uo bsiiento 

His will was filed for probate in the Probate court of Cook 
county and on December 11, 19^> letters testamentary issued 
to Continental Illinois National Bank and Trust Company cf 
Chicago and Nelson W, ?dllard, as executors of the estate. 
On December 31# 19^0* the executors served the following 
written notice on the claimant through its agent: 

"December 31, 1940. 
"199 Lake Shore Drive, Inc, 
"John To Iheeler & Company, Agents 
"First National Bank Building 
"Chicago, Illinois, 
"Gentlemen : 

"Reference is made to a certain apartment lease dated 
April 26, 1940 entered into between I99 Lake Shore Drive, Inc., 
by John T, Vvheeler & Co., Agents, Lessors, and William B, 
Storey, Lessee » 

"As you know, Williajo B. Storey, the Lessee, died on 
October 24, 1940 and the undersigned were appointed Executors 
of his estate by the Probate Court of Cook County on December 
11, 1940, 

"In accordance with the provisions of said lease aM 
particularly Exhibit 'A» attached thereto and paragraph Twentieth 
thereof, you are notified in accordance with the BO-days notice re- 
quirement that the undersigned now elects to aai does hereby cancel 
and terminate said lease, such cancellation and termination to be 
effective as of January 31, 1941, 

"There is enclosed herewith check of the Continental 
Illinois iiational Bank and Trust Company in the sum of $1,198.00 
covering the rental in full to the date of cancellation for the 
months of November and December, I940 and January, 1941, plus 
the sum of $148,00 which we understand from your Pearl Neumer 
was the cost of the decorating done in the apartment. 

tS--i^^B £: ■roj'ijrsfftj^ '■'»«' ^BrrBlXl^T .W iseaXsW Sob ogBOlrfD 

iriJr.toIJ. :;'SO^fifs.'>xi? «il* ,0^^X ^I£ ^aedaeosa i^ 

.sloniXII ^o§si^xlO" 

: iI€«9XJXI9t)" 

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.a-^^x ^xx 

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-:n.i lel xsel^ieiX®3ii«o to @^6fc arict o^ XXi/1 «X larfani afuJ i^jtiiftvoo 

"Kindl7 acknowledge receipt of this notice by signing and 

returning the carbon copy which is also enclosed, 



"By /s/ B. S, Bronstcai, 

Assistant Secretary ^ 

/s/ Nelson W, Willard 

' Executor s of the Last Will and Testament 

of Mlliain B enson Storey|i decease d. " 

The "check" inclosed reads as follows j 

"199 I-ake Shore Drive and John T, Wheeler 

and Company, Agents 

Date Dec. 31 J 1940 

Received 31even Hundred Ninety Eight and 

No/100 iffM Dollars fron Continental 

Illinois National Bank and Trust Company 

of Chicago 

William Benson Storey Exec. 34051 $1198,00 

In Settlement of Account as Follows Do 

Payment in full to date of cancella- Detach 

tlon of vVilliam Benson Storey Lease, 

Dated 4-26-40 as Follov/s: Nov, and 

Dec, 1940 and Jan. 1941 rent 1050*00 

Cost of decorating apartment in 

accordance with lease 148,00 

Approve 4 

Endorse check and 
W- Sign Receipt Here, 

lio. 58922 

Do Not Detach 

" , .f:.t\.;\t' .vo ioia. mag^l!. figil^iVf., X?. 

.„ ^.miM b^ikmsE cs^vsIS beTl&foF 

^^e.a&J x^Tod-S noaxiS'S es&lLXI^^. lo jxoict 

SS^ , 

dofiisG ?oK oQ 



2-3 2-3 

Chicago December ^1. 1Q4Q No. 58922 
When the Above Receipt Is Properly Signed and 
with such Receipt Attached Hereto 
Pay to the 

Order of 199 Lake Shore Drive Inc> John T » 
Wheeler and Conpany. Agents $1198*00 
Eleven Hundred Ninety Eight & No/100 mt^ 

Trust Department J» P. Alinsdal 

J, Kepler 

Authorized Officer " 
On the reverse side, across the middle, of the upper half of 
this instrument appears the following: "Do Not Write or Stamp 
Bere"» On the reverse side, across the top, of the lower half 
of this instrument appears the following: 

"Sign Receipt Attached and Endorse Here 

This "check" was retained by the claimant until April 26, 1941, 
Claimant's attorneys addressed to the attorneys for the 

estate a letter, dated January 3, 1941, which reads as follows: 
"You will please be advised that your communication of 

December 31, 1940, together with your check in the sum of $1,198 

has been referred to us for our attention, 

"After an examination of the lease in question, the basis of 

the claim of our client for rent for the period of November, 1940 

Mui b^ii' ieeefl evo<JA srfcf aesdW 


^ . (. ■■la es'isvsi ©ri* cO /*e^oH 

»I4^^X ^dSi ItirjA ItSatii Sfumlalo sri^ x^ bff'eil&i9^ esw »«:rfder!o" cJbiT 

^i lol S'^ftmoT JJ3 ef>':t o.t benaetbha sxm*ioi^& &*iasaLX&10 
• oilol &s abj6S»t i£oiil\7 ^I-^^X ^£ ^isifnisT. L«j3i) ^i^i^eX « •^«i8« 
lo noJ:;tsoixu»mfOo 'xtJov Ja£ij fmaivib^: od aeiseXQ XXir*^ jUoY" 

*io glcBcf ffxiJ- ^flolJaisifp rtl »«Bfl>X &£i$ lo iioW.aaiiaBX» as i^^lA* 
'4'^X ,isd«!Ovo]<J la Jbolisq arid" io1 tnsi "xCi in^iXo ijio to alAXo siiit 


to and Including April 30, 1941 at $350 a month, it is our 

opinion that the above mentioned estate is liable for the full 


"If it is your desire to ajnicably adjust this matter before 
we file our claim against the estate, we would appreciate your 
so advising us," 

Following the receipt of this letter there was an exchange 
of correspondence between claimant's attorneys and the attorneys 
for the estate, the former asserting claimant's right to the rent 
for the balance of the term of the lease, while the latter iHf 
sis ted that the estate was only liable for rent to January 31, 
1941, plus the sum of $148, the cost of decorating the apartment. 
On April 26, 194-1^ the attorneys for claimant wrote a letter to 
the attorneys for the estate which contained, inter alia ^ the 
following: "You will also find enclosed your check, dated 
December 3I, 1940, bearing No, 58922 in the sum of $1198.00, 
which through error was not returned to you in our letter of 
January 3# 194-1«'* In answer to the foregoing, the attorneys for 
the estate wrote a letter, on April 28, 194-1# which contained, 
inter alia , the following: 

"We acknowledge your letter of -pril 26 together with 
enclosures therein referred to, including the check of the Con- 
tinental Illinois National Bank and Trust Company No, 58922 dated 
December 31, 1940 payable to the order of I99 Lake Shore Drive, 
Inc, John T, Vvheoler in the sum of $1,198,00, 

"We cannot accept the return of the check at this late date 
and the said check is enclosed herewith. You have had the check 
in your possession for approximately four months, 

"Moreover, on reading your letter of January 3* 194-1 addressed 
to the Executors of this estate we fail to find anything therein 

which would indicate that you intended to return the check* On 
the contrary, your letter indicates quite clearly that this matter 


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".Ki; gclelvfcs oa 

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:SjrttwoIXol edi ^sila iBJal 

-£;. ,,riii)x;Xsrii ^ . ;>'i^^el5i nisierii asiueoXon* 

tn'i^Jb SS^ii . . v-j.-^ - -^i-^'i' i«B 2lflsa Xisno-t:tfi>I alonlXXI lB:ia3ttlS 

. 0*8^X^X^ lo ®WE ©iIj £ii i»Xooxi'-^ .T xido'i^' . 

-yj-...-: tj .^ ^^... . . :. ^f'' r:;j- '.lo £i:xir*©i: arid" d^qstoofi dromijso sW" 
-f^.-fi'i .v'.-> •"■trr -»%7 r/N- f.r ,.,... r;sf»i«ri bsaoXOiis 8i ioerfo I>ii?a sil;J baa 

' *^ '^Xe^asLtxoiqqs tol xwieaseaoq atro^ al 


h&d been referred to you for attention, and that ypu did not \ 

intend to return the check,'* 

On January 2'j, 194-1* the lj»y of the apartment was turned 
over to claimant's agent by the attorneys for the executors. 

The following is claimant's theory of the cases "Claimant 
is entitled to a judgment for rent for the months of November, 
1940 to xlpril, 1941, both inclusive, together with attorney's 
fees, interest and costs pursuant to the terms of the lease; 
that the estate could not terminate the lease because (a) lessee 
had made his election after the death of his wife and he cotild 
not retrace his steps; (b) after his wife's death only lessee 
had the right to cancel the lease within a reasonable time after 
her death : (c) that assuming the executors had a right to cancel 
the lease within a reasonable time after lessee's death, they 
waived that right by not attempting to exercise it within a reasoa- 
able time thereafter, as the lessee died October 24, 1940 and the 
notice of cancellation was sent on December 3I, 1940, the lease 
expiring by its terms April 30, 1941," 

The estate states its theory of the case as follows: "1, 
Under the terms of the lease in question the trial court properly 
held that said lease had been legally terminated by the Estate on 
January 31f 194-1* 2, The acceptance and retention by Claimant 
of the check tendered by the Estate for $1,198.00, the sura ad- 
mitted by the Estate to be due to January 3I, 1941, the date of 
cancellation of the lease, constituted an acceptance by the 
Claimant of the terms and conditions on which the check was j 
delivered, •• 

The claimant contends that as the lease did not state how 
soon after his wife's death Storey had to give the notice of can- 
cellation this right had to be exercised within a reasonable time 

after her death and that the notice of cancellation served December 
31, 194-0, was not given within a reasonable time. The lease was 

Soa tt^ ipgx ^JEud^ ^«fi iSGi;tfi©^;*s «ot eox oi 6a,irtal©« Gfi©cf il*£fl 
^^T9«^svoS[ to a^Jao&T. Bti:^ rot ine^t Wi tasasliir^ « o^ fesi^ld-ne al 

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V ^ ' .bAXb ©ibIu »Xdfi«oB*i5®s « iiMllw ©s««X ad;? 

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,1^ fcfiK O*-^! ^ ^Xfc 9»88el add- «« ^le^lBftisjIcT smi^ aids 

«^B ^. 5^ -a^ctooeQ jKo te$>g saw aoli &Lle9Cis& to Rol^cua 

:oXcfaejLfp ni ©ajstl 9di lo 8«we;t oiifvt isfcffO 

a s;;f£;^«S »ili X<J £»©;!• janlfS'Ss^ XlXisg^i iissl^' tjsfl ©aB©I bl&s i&rl:f bloA 

itWfiielisXD T^d npi^Re^tei tsi& &i>£iA'Jq&t>z>^ sAl .i .X-^tJx ^X£ "sjificnst 

-jjs «i;e fiiid^ ^OOifi^i^XI •lol «^acraa ©i£if x^ bsisbasi Xo&do eili- lo 

©d;?- Ycf Boai^iqtiooj^ an beiv^ltmoo ^&qb&1 ®£i^ to colcJ-fiXXaoniis 
I2BW aCoofio QffS ilolilw ao enoiJ-ifcuioD foru* Ri5ii»;^ 9£lj to ^XLaaieXO 

» .fieievlXsJb 
rro£i 'si&;$z ioa. bib sz&ffZ &dJr as t&di &ixL&im>o ^nsml&lo ©ci'i 
-nts lo eoJfc:ti3ia ©xl:t svXg OvJ fofid xoio^tfi ri^^jaofc E»elinff eitl tt©;^la nooa 
t'l^d- sXdEao^fiei & flJxtJ-Jbar fc»8ijniJX» ed oi bed zM;} noijfiXIeo 

:ocf£ioo9a ftevisa fiol.*^iXs>oa«o lo ©ol^oxi <^i ^^ r'«« ^^'^^-^ isi^ is^la 


prepared and drafted by the claimant and therefore should be 
most strongly construed against the claimant if there be any doubt 
or uncertainty as to the meaning of the rider. (See Jewell Filter 
Co> V. Kirkp 102 Ill» App, 246, 25O5 Goldberg v. Pearl, . 306 111* 
436, 439, 440} Igright v. Takito, 210 111, App, 58, 60.) If the 
claimant intended that the lessee should have a limited time 
within which to cancel the lease it should have plainly said so 
in the lease. Cases where a lessee, after the discovery of fraud, 
must cancel his lease within a reasonable time are cited by claiai- 
ant, but they are not in point. The instant contention of claimant 
cannot be sustained. Kven if it should be held that the rider 
required that the notice of cancellation had to be made within a 
reasonable time, nevertheless, we would hold that under the some- 
?^t unusual facts of this case the notice to cancel was made 
within a reasonable tlme« In this connection it must be borne in 
mind that in the matter of the right of cancellation the executors, 
xmder clause Twentieth of the lease, stood in the shoes of Storey, 
It will be further noted that the rider contemplates that the 
lessee may exercise the right of cancellation after the work of 
the decorating of the apartment had been completed. 

Claimant contends that Mr« Storey after returning to Chicago 
elected to remain in the apartment and thereby waived his right of 
cancellation. This contention is based upon an alleged conversa- 
tion between Mr, Storey and Pearl Neumer, an employee of claimant, 
after Mr, Storey had returned to Chicago^ It appears that prior 
to the time that the Storeys went to California Mrs, Storey had 
ordered the decorating of the apartment, and Pearl Neumer, ?^n 
she was first called as a witness, was asked if she had had any 
conversation with Mr. Storey after his return to Chicago and she 
stated that she lxad« The witness was then allowed, over the ob- 
jection of the estate, to testify that she had a conversation with 
Mr, Storey after his return to Chicago in which he stated to her 


^ . .^..•.- , *X..,.?.?f- t^*S ,q<jA «III SOi .t^T-^ .V *00 

... ^ i:^ .^£^.^1^ ^y ,^f:?i.# jo^ ter> t^£> 

^ v<?»«wBiJb ^ssasfif -c '^isrbfi aseeO ,©8£el ©lia- fli 

- : if» ohle:? sldsno.eas'j « tihltl^' &&.Q&1 aid Xeoycijao d-Ejiaa 

' :oi;t?jIXs!jiiB» 10 »*!ik*Ofj Ofit ;tiail;t fj&iJ:L'p9i 

, 'Oils ©li^ fll feCFO^B ^-<9Si5®I efld" lo fIi©l^GS«Rir esxfislo i&fcfu; 

^M J'JVtST t«fs'5i?xi:f' lids v+£te«d"iBq« eIi;^ ax. aJtsiaei o;J tectoeie 
_ j 9©''^-rciu!5 riii ^';?e^!i;el In:3?«<{ fats Tj^TO^ffi #1*1 oe9«\J-9Cf noW 

vfm b&d fmd ftde 1i fesjiaB aair ^BB^aStv a ea fcftlXao ;t«iilL saw MJa 
©ria J5ns osf^bldO od- «^^^i etrf ^»:fl« t«^«*3 ^rM ricflw noX;tj8ai9viioo 


that he would like to have the decorating done as quiekl7 as 
possible because the apartment was torn up and was not in a 
liTable condition. After claimant's evidence was finished the 
same witness was called "in rebuttal," and, over the objection 
of the estate, she was allowed to testify to the following: That 
in the conversation she had with liT, Storey, after his return to 
Chicago, he "also told me he intended to go back to California 
to live; that he had not made up his mind definitely, but that 
he wanted the apartment decorated so it was in a livable condition 
and that he planned to stay on until Spring at which time he would 
have his affairs in shape so that he could make up his mind," She 
was then pressed by counsel for claimant to state irtaat further was 
said, and the following then occurred: "A. »— and that he could 
not make up his mind exactly what he wanted to doj he felt he 
would like to go back to California, but that he at that time 
was not certain what he wanted to do, - he was not feeling any 
too well, — would I please get the apartment done as quickly 
as possible, as the apartment was not in a livable condition, 
and he said in the Spring he would know what he wanted to do« 
]£r* Davis [attorney for claimant]} Q« That is all that was 
said? A. That is all that was said, ttr, Davis: That is all« 
The Wltnessx (Continuing) That he intended to stay. Mr, Moody 
[attorney for the estate] t I object on the further ground it 
is not rebuttal," Upon this so-called rebuttal testimony of 
Pearl Neumer claimant bases its claim that Storey decided to 
remain in the apartment and to waive his right to cancel the 
lease. In In re Estate of Hanson^^ 304 111* App, 157, ire had 
occasion to pass upon the evidence of admissions made by persons 
since dead, !/e there said (p. 162): "» * * * The Supreme Court 
of the United States, in Lea v. Polk County Copper Co.,. 62 U.S. 

493, observed that "courts of Justice lend a very unwilling ear 
to statements of what dead men have said,"* 


' amil&Lo 'XftJ'lA .nol;Jlfi£ioD olcfsvil 
^ ^.lAiiBf^T. nJt" fts'IJUo eaw ee©ii;tjtw ease 

, > ili^lw &&d 9ii3 ticiiBSi'ii'vaoo edi al 

L^^taQtal »d ma. bloS o&La^' Bd ^osfiOidO 

; ^ Xejlni'Jsfe t^alsi eM qu sfcuasa «roa Jbcd ©il i^stW' i®viX od^ 

... XiSaii £to ^iij8 ©if JExwrnsIq sri ;Jjs£l;t tea 

f»rfc; ♦^,f)ixi:s aid qjj siLsin MlPe^s ««£ ^jBfy- o« ©qsfie xti sxtBlljs eiri 9V«xf 

f)Iifo& ^^ J-£4:f b^ii — , iJ^^wcoo naa;? giiiwoXiol, wiii Bcs ^cisa 

a«i ^I©1 Girf jofe o;t be^osw eti ^jadif ■'jlct »JBxa Lislat 8 ill qu aisffi cfori 

ef.tx:^ .-^j- iB 9A iBdS issd ^jsliirroliXfiS oj i^osd" 03 o;^ »:dll blssoif 

yp.Q gcJEl'--©* ion 8fiw &£i « ^ol) oi £>«;tiEuw ©il ^jariw jELtB^^ieo toa ttem 

^floWil!«ioo eXrfsvil j ni Jcsxi saw :Jxi9ar;taa(i6 ©rfd" es ^eldiesoq b« 
,ot> oj- i>oj.n.^w ftjci ^J-iariw woji:^ I>Xwo«r ad 3iii:-xq[8 sxl;]- nX iiXea ©il bas 

, i:i .Mae eew-^jeiicf IXb al iesH ,A ?f)lB8 

TjfeooM ,iM ♦"?„<:/?: oj 4j^£>flfc*cX 9iS i&df (anXjt«ljfioO) iseen^tlW «|{I 

:;i; Uitio-t^ %BdS'w'l siU no c^©^t^o I j[»d-fivas arid- aol ■^ofiioo^a] 

lo •^lOisl^feoct lBiSsi(S&i b&ilztt-^B aiuiJ- coqU " .X-sJ" JiJcfet J-Qn ai 

oj b&bltiQb Y9^o;t& itad^t cXjkXs s;^! seeficf oHii&iXftXs neoufeK Xise^ 

S)i!;t X&arifiS) oJ- itxiBli slrl »vlfiw o;t £i£tB cfass^trt^qs dii^ al iiX£«9i 

bJ3£[ m ,t^X ♦<cq4 .III ^£ ft^gflpff to a:^A;te;i[ ai nI sil »»a«aX 

axios^eci ■<Ecf ©fir>«a efioiealoiSie to ^tapbiye ©lit jaoqjj saaq oi iiolej»oflo 

t'ljioO aatenqiLfa »riT » * * «« t(SdX .q) ti&e s^f«dst «if .baab satila 

,, ,.ii^ :.., . v»^-^ ......w^ .^ a^iiroo^' ;J*tf£:t i)©vasatfo ^^^^ 


"In the still later case of Megglnson v , Meeein^ o^ 367 m. 
168, the court affirmed this rule, and said (p. I80): »We have 
recently had occasion to observe that the evidence of admissions 
made by persons since dead should be carefully scrutinized and 
considered with all the evidence in the case, as it is likely to 
be abused, t (Citing Plerke v. El gin city P^nWr^p p.^,^ 366 m. 
66 j M2reen_v„_j3taie_ot.Ca£ls2a, 365 HI, 482.) 

"In Davidson V . American Paper Mfg. On., Tn^,, 188 La. 69, 
175 Soo 753, the court quoting from Bodenhelaer v, Bode nheimer»s 
MlJUf. 35 La, Ann, IO05, observed: 'Extrajudicial admissions of a 
dead man are the T»eakest of all evidence. They cannot be contra- 
dicted, iro fear of detection in false swearing impends over the 
witness. In most instances such testimony is scarcely worthy of 

We are satisfied that Pearl Neumer's testimony "is scarcely 
worthy of consideration." In this connection it will be remembered 
that when she was first upon the stand she did not testify that 
Mr. Storey told her "that he intended to stay," and when she testi- 
fied "in rebuttal" It was only after considerable inducement by 
claimant's counsel that she finally gave the testimony upon which 
claimant now relies. The alleged statement of Mr. Storey, "that 
he Intended to stay" is entirely inconsistent with everything else 
that the witness testified that Storey stated to her at the time. 
The estate contends that "the retention of the check by the 
Claimant for $1,198 accompanying the notice of cancellation for a 
period of approximately four months constituted an acceptance by 
the Claimant of said check and of all of the terms and conditions 
on which it was delivered as set forth in said notice of can- 
cellation." The claimant contends, "By retaining the check claimant 
did not concur in nor accept the attempted cancellation of the lease 
by the executors." The claimant seeks to evade the effect of the 
retention of the check by claiming that the attorney for claimant 

,, rv.-J h 

iitiO .Lc 

x^© BdS Li» fiti* f)»r£si>2BrK>o 

., ^esQiaaw fefi^ st:« fuwa &««& 
^ ni TiotfisB3^b lo rws^ oS .f)@i3if) 

fid aoqo cfaTil bbw ©ria neriw ;?firfct 

fvft»*iii Sri i&di'' ^Bd bloi ti'^ioia ♦'bM 

-i-^s xlflo ssw ^i "Xs;tc'ifo'ei ill" S«n 

B «sft fl0W«IX*^x.o 10 motion f^:t ,«l^.q«ooo« 8eX.II ^>^ ^nBal.iO 

.,,^. ,tofl ?.l^s «1 xl:?io: a ^-. «• b^^evil^b bbw ;ti riolilw no 

.H^t.I ^l.S^^ - . ^^«-^ *«««^-^^ -« ".noi^BlIeo 

eEc^I '^ .iiBXIeonao b«>;tq£.3;Ja :3 ^d" cfqeoor -• - - — -^ ^^^ &i^ 

crctB^Ulo ^01 N^efl^o,.;rs erf* iad-t Biil;«t.I» .J^ ^r>«rfo .^:J lo Hoi^a.d - 

liiiiiiXit-Vv. :^vr, 

r.o 2i '. ■ 


through error did not inclose the check in claimant's letter of 
Janiiary 3, 1941, This was plainly an afterthought, as that letter 
Slakes no mention of a retxirn of the check. But the claimant 
further contends that at the time the check was sent there was 
no dispute between the parties as to the payment of rent and, 
therefore, "even had claimant cashed the check it would not have 
been a satisfaction of the debt due." It is a sufficient answer 
to tills contention to say that the check and the letter inclosing 

it, as claimant admits, created a dispute between the parties^ 

Upon/receipt of the executors* letter of Docember 31, 1940, claim- 
ant's attorneys imcediately challenged the right of the executors 
to cancel the lease, and the dispute between the parties as to the 
said right of the executors is the basis for the instant suit. Had 
claimant used the check it would have thereby admitted tha,t the 
estate had the right to cancel the lease and that the sum of 
$1,198 constituted a payment in full of all rent due under the 
lease plus the sum of $148, the "cost of decorating apartment in 
accordance with lease." V.Tiile it is true that a check is not in- 
tended for indefinite hoarding, we do not consider that it is 
necessary for us to pass upon the instant contention of the estate. 
Claimant contends that the trial court erred in allowing the wit- 
nesses W, T, Alden and Joseph E. Otis to testify that Mr, Storey 
told them that he was going to terminate the lease and go to Calif- 
ornia, and claimant argues that the trial court may have been in- 
fluenced in deciding the case by this testimony. It may be con- 
ceded that the said testimony was not competent. The trial court 
seems to have adopted a liberal attitude in receiving the evidence 
of both parties. He permitted claimant's witness Pearl Neumer to 
testify in so-called rebuttal when her testimony was not rebuttal 
evidence, and the court so stated, We have no trouble in deciding 

this case upon evidence aside from that given by Mr, Alden, 

7r:;:v;:;- : r';' ,. :■ 'l© ^'xt/^:t9r^ a 1© xtolvtnoffl on 997leci 

2»l;;r^£q 9il;t nsew^sdf scfxjqali on 

■\j r:.->m-i£j(! '^^s- ■ L&^&'&ta ^sfimh& yasa&teS-o as ^^t 

eTotconzs Oii;? ^o ctsS^J, ;;©3fioXIeifo ^Isc^aJE&ssswl s^enio^TcTB 2*t/is 

rid- iM:} iBi^imiiu x69i^d.:} mr&d fiJjLfow ;}l 3l£'Rrfo ©ib'df- &©8i/ d'nBaiifiio 
^,^!'.! '■i^Lja;xr ssiii ia^-i — .. - . njt :^fl:&isv:j3q b feftlintlc^eaoa 8^X»i$ 

. J : vu ....... ..v.^ cJnsd^aai: »ii^ ncqu »ea«| CKt aw lol x^Bee-sirsa 

-^"UXXjS JSi bfeTS® ctii/oo Ifl^'xd' afld^ ;tfixl;J efoie^nod tniaaJtaXO 

-•iXi-;. ^^j . -s uii;. ..c. .; i.., o^silssn^t oi ^lo^ Siwr sil ctsxf^ rawifd' hXocf 

oiuoa l&liS srfT ,inf.i^qm.c^ Soel sbw icjtxoBtlJ'eect &Xj58 ♦riif ieri^t f>9**5 

0.1 is^MfsTif " Xi£9'5 88e<n.tlw a';tflB£tX/5Xo £>©j;^iffli©q »H .asJtctiaq died to 
l£^ ' '" "* fiVf ^jaoffii^aed^ i©il ii'^riw Is:f*acro^ Jb®XX«0'-os nl t^liesi 

t :. i i ♦iM >td nevxsi i»ri:t meil »blBS ©CHtftlv? aoqsf b^bo zMi 


Kr. Otis and Pearl Neumer, and we are satisfied tliat the trial 

eoart decided the case upon the competent and relevant evidence* 

The judgment of the Circuit court of Cook county is 

Sullivan, ?• J,^ and Friend, J*, coneur» 


ij sa&o siii bBbtoQb iruioo 


ylAiatlfr filed his eosiplaiBt in «quitx *** againit 
Kelson VH» Brom aad Dorotbjr Brova^ to establish a trust la e<irtala 
rail astata,** 4Bsa«rs «era flX«4 ^ tte tefaaAamts^ to aach of 
ahiah plaintiff fila4 a reply* Vlp&A a haariac b<»fora Uia ec^trt^ 
at tba eoRolualoa of plalatlff *s aaaa, mpoa aoti«i ef d^fandaats, 
a &»er— WIS aataraA Aiaalssiac tte sooiplaiBt f»r vast of at^oity, 
FlaiaUff appaaXt* 

Tha faots assaatlal to a datarjsin&tioa of this appaal appaav 
froi testlffloiqr glvea by pXaiatiff anA froa testiaooy offered by hia 
hat axcladed by the aonrt, Qa. n'&reh 26, 1934, plaintiff and dafaad* 
aat jtolsoa H. ftrevBt haraiaafter e&Uad daf^adaat Broaa, watered 
iato a arittaa acreeaaat of partatrship for the oparatioa of a 
hotel leasehold at 1322*26 East 47th street, Chleaso, Illinois, 
"or SOBS other preaises aataally aeeaptabla," aad to use certain 
fttrnitare aad fttraiahiags o«m41 by plalatlff la the eondaot of 
the propoaad baainess* A leaae for thm preaisas was to be exaoatod 
Joiatly and to be aoceptable to both parties aad npcm tha signing 
of the saaa tha partnership ap^aaaat was to aoaa iato f oroa aad 
effeot* <^11 receipts fron the aatorj^isa vara to be deposited in 
a Joiat baidc aocooat and all disbttrsea^nts wrm to be aada by 
ahaaJlu 1!ha afreeneat fnrttor provided t 

"10 • It is aata&Ujr oiyi^r stood ami agraad that the 
3FSCXPZC imrsMt of this partnership shall b« that aaoh par^ hereto 
ahall hare an eqaal aaeont Invested In capital aad labor, that eaoli 
shall profit eqaally, and that In tha ^y«nt of a loss that aaall 
^mlU equally bear sash loss, aad partieolarly that at all tiaaa 


.>l» ,C» Wi 





:^5 fijroc;' 

''x^r&i v«il|i9 «■»« «** 

ifSfSo ^TiHtf iiiotffti tea JUiXq[4i»« oi l><»J«OKAl tmt e» At ifv jut IX«ifo 

tttati XlM i« j,Bd:» '^X'fiiXi^ol^Tsq ted «itioi liiutm t#*4 xKtffj^ XiMte 


-2*. ^ 

thfet the partn^rihip %tmXl b« oa & TifTt^lZfTi B&IOS* 

"ll. 1% %M aaatms.lly wjdsrstoofi and &gr«9ei thitt feis p«.rtii9r- 
sMp iigr«««®Tiit shsill spply <mly 1b soim^setlon irith t^ ?^>..;^;i^9at 
of ^b^ l»a0<«l»ld and hot«l basii^ss r^ffstiT'^d to hssr^la, ai^ nlb^l 
not extsnd b<^3roai ttw op«i!'stioa of this fsartlcular ent^rpri^a,*^ 
lih©n tfe» partl«9 i»er@ aat abl« to ^tain a leas« for th© 47tJi st^st 
pr«slsd3 they aat.hori«$d. In writli^j, a real «st&t«? broS^®:? imjaisd 
BanM»s to aegotlfitf* a I<t»s% for tli^ two six sF&r^s^at bolX^liOgs 
ioe«t^ at 6330-52 aoS 6334»36 Inelesids svemie^ C^Mej^g®, IIUje^Is^ 
&jQd «U»»«itt4?ntl7 thd :^artl«» entor^d Into a 1«&3© f«»r th® pr^mtsas^ 
^330-32 Incl«ild« svamis, w th ThcMKsis durla^ tli» owiitr of th« i^i^^ 
for k^ period of flv<» y«»yt from Juasi 1, 193*« Plaintiff offered to 
proT* 'JAt prior to th«» «x«catlOB of thl« l^^aa* Ijb had a eomr^rs^tion 
with defendant ^rowi in ^hich hf^ told hia th^t v^mriSii tho o«ffi^r «%f 
hoth j>r<»Bls«s» bftd 8t«t^ to plaintiff that he did not ear# to r«nt 
both buildings to th»a until h« hftd had an opportunity to «^3«n«6 
hoiar th#y vcAtld op«trat« aw of th*? buildings and that \» voflld l9a«« 
to ths« 6330-32 Ingl««ld« avcima for five y^ars and if it app©cr«d 
fdthin a yo&r or so that they iwr* siioc«ssfal in the operation of 
th« business h^ ould th«n fiT9 th«» a l^ase fear the othar building 
to run ooncurr«»ntly with ths Ions® for 6330-32. 4n objection to 
this t^atliBony as sustsinpd by thft ooort. Plaintiff also aff»rod 
to pror9 that the two buildings adjoinstd «aeh othsr and wars sopiup&tod 
by a eoaBMm farty wall, bat d^fQndants* objeetlon to the testimony 
was sustained. In ths spring of I936 d«f«iidant Brown and -lin^ls ox«cu- 
t«d a l«as« for 6334-36 Jngl«side tmrnwam^ in which Brown w^s ths 
l9sso«f and hi operated a rooaing hous^ in said pr^sisas, in his own 
b«half. Plaintiff t^stifi»d that sons tiJM lat«r h^ h»»rd, for the 
first tisie^ of this transduction and that hs told d«f«ad&at Brown that 
they had eont«>«plated taking that building^ to whioh dsf<>ndi^nt Brown 
answoradf **! took it for qyself^ so what are you going to do about 
It?" Plaintiff furthar testified that ha did nothing i:rboat ths aattar 

Um,r tiX^-icJttw ?■■■ 
• Jit til*© ■"^- ■ «4» tn^- .:^ 

Sid h,: " - ' iitsln«^«fr iBlw 

to m. '3 <» ■to itawf B ali&lv 

vr^r . ^{ras«iae«tf Mil 

' tio *9ir . ■: Sirtl \tim v^f amDrnt m 'x^ 

. f%m Al*i ^ ^f'.^I 'Vsi iffi^tt 9^ ttX »%9mia)itm mmr 

asfcr . sld^ s.: , - . ' 4»*:~M'^ w-^ Mtt^l • »•♦ 

«d:t -s©* tfi^ftX taW MRM ^*^.* ^-.f^f^wft^^n^ ,ix«rfMr 

»t th^ tism 0xs«!pt to protest sad tlis.t fe© did fiot dlssass 
i&&tt€»r wltli d faadaat Browa tfe^rsfefterj that h^ first l«ai?a»d that 
^lariM «&s not t^ Qmrnr of t]^ properties Isi q|t{@stiofi vh^m ^uria^s 
attorney aoilflsd hla, i& Ajarll, 1§39# <^t defftaSaat Broi^ hgii 
pa?cha««4 both proper tias la :^«c«a*er, 1937l tfeatt llr©w» Isa^ Ei^?v^r 
notified hlai that he had poreb^seS bech tjulldliags , hil# tte 
properties nsre tek«a in th@ a&se of dfssf^&dsst Dorothy iroMa^ 
pl&lBtlff«« «na^aB« t«»nds to support his c^mtentioii th&t "coi^M- 
eratioB for paya©at of th«» jarop^rties was aoppll^d ty tl^ iS®f«*jad4at 
N^lscm H, Brown.'' Plaintiff •s evidence also tends to gapjN>rt Me 
farther c<ait^ntlon thst "d^f^ndsat Bro?«ii GentijMously o|iier^at«<l « 
rs^^v^Bf house* in ths prop«rty 6334-36 IngX«8id« tvewm frtm tb» tlM 
he sc lalrsd a l"as« th»r'9on la 193^ «^ad siftnT th@ transfer of titl« 
to hoth fi«e«s of i^roporty to his daui^tsr hs c<»itinu'9d his o|^?jp^titm 
of the rocalns bouaa at 6334-36 Inclealdo^ and «h«B th« ieasa cm thft| 
pftrtn«rship property expired in 1939 1m took cmr that proptrtr &M 
at th« tl»» of th@ trial va.* operating both prop^riles as a 70«nlng; 
house* '^ 

Fl^latif f statAS his theory of tho ease as folloi^si 'That 
Vc>Isea R« Brom as eo-partasr of the plaintiff oct!Upl94 & fiducliery 
relationship tovsjN tbfi plalatlff Khieh forbade hia fv<m purehasiag 
tkM real astat«» whioh was ths sahji^ot natter of tb» partnership, oar 
ths property adjacent thtroto, durlni; th^ ^xlatsac« af thf* partaffir- 
ship and holding th<* 8a«« adv®r»*»ly to th» plelatlff during sad 
after the t nuinfitioa of thr^ period for 9?hlah th« pfcjrtnersitlp ws 
organizad, and that th« «>ntlre eonsld'^rsitioa for Xhni eesreyaiie* 
harlng bac^a famished by th« drf >ndant, n«l&cm. H. Brown, placing 
the titl« to the proj^i ty la che nana of orothy Broim iras hat a 
subterfuge to accomplish ladir'^etly a ri^salt ehieh a court of <^qaltT 
^Tould unhesitatingly d^nouno^ If title had been taken la the mm» of 
Kelson H« Brown who was a partner of the plaintiff st the tine title 
was taken la the nne of his daughteri'* that "th:« fundamental legal 

^ml4 ^ 


^ at aed^S 9%wt ••' . 

t^ vod. ' 

qitettlOB which ai»i«j»ll«s th® elaisi of the pXsljai^iff 1«, dl4 fefee 

d$fi»idaAt Bro«ii ©ccap^ toward tl» plaintiff & Xmstm^ns r-^'XMiX0n»iilpg 

exist^ac^ ©f t^ partnarsbip tfefe i^al « state wMeli was th© jjg^l^et 
Witter ©f th^ j^rtneriMp, or tha property adi&ijtiit tj»t?r*fti»^ stwA 
lu^ldlof tfa<5 s.i»» &dv«rs*ly to tint plaintiff af t«p tbe t^r^^aatieat 
of the pf^riod for wldeh Us« loaso lois first i^de*" 

Wt kiT9 b f or# us» th&r9t&t9g & e&s« 1a «hiek pliii»tlff*s 
•rid^rag® shews thst d^f^Mant Brona <Jid not |m.rch&3« th# propsptit s 
with psptiiiirship foads nor for pay taershli? ^j-poaes. -laiatiff 
«l%ias that vmA-r such © state of facts equity iflll doelar# tMt 
plaiatlff "holds th^^ tltl^ la trust tor the imr tn^srsaip u|>i>ii r^i»f 
hmtvm^nt of a fslr pronrsta of his dishurs^maats by ihs it^m&lniBg 

la "^^w^** ^- T??ftR*^fff 313 111. 499* la wialoli ««» pai*ta«r 
olsixt^ th« b^D^flt of 4ii conatruetlvs trust &s to e«»rtsln r«al astSitOj 
th« court said (p. 5^5)' "^^ «vl4»nc« shovs that this property «&» 
not houi^t trith ^rtn«rship fonds^ hut that th<^ pwrohase prle« i«r8 
paid by app^llaat fr<ai prlvata funds vMch had b«'?n 9«t aside to hSm 
as his shAr«^ of the profits fro« th@ partnership buslnesa. hlle 
the l^fase (m this building and th^ right of the par tnisr ship to renew 
th« a&m» sre partnership assets^ this do^^s not aff<>et th$ right of 
apvellaat to secure and hold as his indlvidusl property the fe^^ to 
ti!» pr«Bis«s. fta» aeife fact that appellant and appellet^ w«r« part- 
ners ia the restaurant business did not sake real ^stat<? purehased by 
one of thesi partnership property, f© aake th^f* ^uHding partnership 
property it sust have be«n purchesed with partnership funds ttxt 
partnership purposes, or at l<^ast ^lere smst have De«n ta^ of sueh 
•lesents present, fftofcfylfff ?,„!?l»K«rjllf?> 2^ HI. 461 ^;g!?XBa'5B f^9^ 
▼. Sfllley f 153 14. 344| ^XM"** 'h MU'^t 1^3 Id. 494.'' rhft court 
further stated (p. 5'^)t "Ths law is well settled that Qm cl&imliic 
the bett'^fit of a oonKtruetiwe trust anst establish it by elear and 

M-.^ iO'i^' 

* *«:i:!taK ft'sl'^ s«*^ ifsjW# ^art &©1*t^ let* 'Jd 

..:t 'm\ ■■ -df aWtorf* r^ ' 

-It :sjli Btet-»ir«j '!fl»*l a to tn- ...'•',■-- "5' 

I'^iT^ sao iidMtff £il ^^f ,1X1 £1'£ ^^^&M^ ^f fUffjff Sf 

titbit "^ tea s^fi^&Xiv^ »Jbf^ o» »«««>1 •ill 

at alif «« Ibfttd tod »isr»»c «# huli^jq* 

^ ^lact S€ta htb HQfrntma^ iiSMtsusn^n 9dS at 

F»<| Kilw CM»««i(^>^i0«r ««MMf «pyad( ttm ^1 ic#««^^ 

iirJUli it 

./^*j fiiii 

!:6«> ;S«a 


■•Ti|:r 'f*i**«c««ar 

: j.^n 






- "'?»o 


^iTi«ff r- 





ecnrinalng proof. If thii ^vidfBca 1» doabtfttl or eap&l»l« of r«asoiw 

ftbl9 •zplanstioa upon U^ories otkmr thorn t^ «xlst«iie« of tb9 trast^ 
it Is not 8ufflei«!Bt to tappet a doero® d«eldrix>i and fi^xiforeiiis tiw 
trust. This rolo «ss ostabUs^d for tbo purpose of st&bli£ls( roaX 
estats tltlfts." la Blft¥fftlt* * ^- Bl&k^ale^^ SUfiU^ ^^ eourt said 
(PP* 53ff 5^)< ""Sx* foasrsl doctrint of th<@ casos s«<9Bs to be that 
tht porohass of lands with partnership nuhds is SMOsssarj to aaks 
it fim proper tf, but this rule irill give way, in ^qoity^ wtor® it 
cl9arl7 appears the Xaaft was iateoded by the parties to be fim 
prop«;rt7 aaA vas so eoBsidier<<Kl and treated by them. In order^ hoir- 
erer^ to eoae within the $xo«)pticns to the feEM»ral rule the intention 
of tht parties aast be elear and explieit." ^^Iitffm Mnfc T. Mlllffli 
gsasOk* shews how carefully oar aapreae «««rt has adhered to tht 
general principles that gowerm a ease like the instant one. te 
quote from tbs opinion of the court (p. 254) t 

"In the ease st bar« the land was not purehased with partner- 
ship funds. The undivided one third interest bcu^ht by Jotha S, ^nfint 
WBS paid for l>y him with his own indiridual snaex* Miller also paid 
for the one undirid d cme third interest^ purchased by hin« with his 
Individual funds, i^one of the swoey of tht firs of Ifewton^ nss^ons 
& rlll^r was contributed towards the purchase of the one third 
interest held by Xewtmi. Ind«?@dj| the proof shows, that the fim 
of K^wtoa, rimii & Xill'^r was foraed by an oral af:reeaeiit after 
^Easons and Killer had boufht their interests. Bach partner hert 
held the title to an tindiwided one Udrd part of the property. Ko 
tatrles were aade upon th» books of the fira, ahowiac that the real 
estate was treated as fira assets. Th^ oirid«>aeef however^ does show 
that the m>operty was ooaght for the purpose of being used la tht 
allllac bttslnets^ and that, after its purchase, it was used for fim 
yarposeSf and that the fira gave its notes to pay fcnr repairs and for 
placing new aaehin«ry in the aill upcai the preaises. Under thttt 
tireoastaates, was the land partnership property, or the individual 

i^^lt ^ i- ■ 

i&si? 'W il^■'-■■ 


• .iiw' 

l*p^ II' lint aldt .jTsirs^ 

^.i^^ .^^ h.-bl^iHeut 909 Mfi wl 

I^^J.d/ n&if #/. idi ts^utv-' .tiLmoo ««» «»XX1M A 

Xa^t -3>xli ttids ffi' .:iadi$ jio^A' •£»« ^twm ttlisitf 

tetti. lot i'lffl^txf e«ar vl «9k : i^XXlat 

f)teiui» tiftfeKia .BMlae^ i3i!i iMSliD XilK ^Oi ml x^nUsi^Mi nms, v^^alq 
Jjmhl^itAtl t^J im «x^ie<{o?4 ^XOanimiim^ MmI 9tt$ mam ^%,tm»i %mm lio 


prci. rt7 Of %h0 pftrti»r« hoHiag &s t^astut* In eossaioii?" Tim eoart, 
after r^^evdag ttet aatl»»ritl<ts b«^&rlBf upon t^ qudstioa b@fer# it, 
•»id (pp« 257. ^58)1 

*^T^ weight of att horit7 $d#»i to at to support thu ^sitioa^ 
tiuty idier« forsoBS, vho &f t«muNU b^oose p&rtxmrnp bagr Iftaei la tliair 
Individa&I nansty aad with thfiir indlYi^laal fuads, b^foge tbe saitiLag 
of a parti^rship agro#wmt» tins Xaaii will be regarded as tbe ladlvl- 
dual i^op#rt7 of tha partaart, ia tba abaaas« of a elaar and axpUoit 
agraMwat tatjaaqu^ntlr antarad Into \tf thaa to aaln It fira pFopart^, 
or ia tho ebaaiisa of e^trolllag elravaataBoas iMeh indieat® aa !»• 
tantioB to conT«>rt it into firm assats, n« do not think, that aa 
appliefitloa of this role to the facts of tha pr^^si^Jit Odsa ahovi tha 
raal astat^ hara ia eoatrorersy to ba flra proparty," 

Cottzisal for pl&ia'iff aaak to distin^lsh tha "QaSttk o*** 

froB tha lastaat oaa upon tha groaad that tha Thanoa aaaa mas daoidad 

onl/ after a fall haariag aad ceaaid«riitioa of coafliotlag ^vidaaea, 

bat aa are oaahXa to saa how that faat ohaagaa tha g^naral prinelpXea 

of law statad by tha eoort. Qm JlHMMi •••o aar^ly followed tattled 

principles of law* 

FUlatlff aamtata gaud w. Allen. 2^ 111. 35, It »• eata 

InvolTlBg sabs tan Ma II7 the taaa points aa this eata,** aad that tha 

decision la that esse favors plaintiff *8 elala« "^a do not ^gr-*^ with 

counsel as to the 9f faat of that da«ition, Xh» Sul oaaa inyolwad 

tha dissolatioa of a partnership b<»twa^a Baad aad Allaa aad aa 

accoantlag. Pllkey and Hoskiag vera aade defandaata to %im bill as 

aaanded whioh prayad that th«ir iat^r^sts, if any, shoald be ase«»rtaia<N 

and declared* fhara was a written partnership agrt'^a^at b^twaaa ilaad 

and .Hen for tha aoqoialtion and op«>ration of ferro aaagaasaa aiaas 

ia Lowsr California, Haad waat to Lower California and acq[alr(»d 

laaaat aad aiaad aad shipped taat ore, but ia a few aoatht ha was 

obligad to that down the aina haaaaca af tha Maxiaaa aad»argo oa tha 

'• .ft 


., XAIlft 

;rf hfti 

J erf J 

> ^.fgio. ^•-■»jc.. 

W.v ■■ 

.«. ^llST'** 

"^7 ai^ «li«Misni A: 

«tfi wroib im: 


•xportatloa of wuB^pumm orti. Eani alsin^ that by iigr«>'%aftiait lMtwt«A 
hla and All«n th^f 9xt9t^@4 their aoatx^et to oVmr tsrrltorlds aal 
othitr Inuiiiiess and for a losaf «r period ibaa vas sfnkt«a)plat«4 in tlig 
orli^A&X afr««»Bjit| tJmt Alien e&a9«4 Jte Westtm Or« $ Mlalii( 
Csainiqr to be iJieorp«rat«4 «Bd tlwr s^^ktaaa eiaas n^eh liad b«t«a 
acquired to b« 9t^Y«79d to lt« ai^ tlut te liat tiase operator tiM 
■lata and extraet»4 «rt froa tl&m of great r&hm but that b» v^tnmtA 
to j^ralt th« lasae of 8t(Mk to Hand or to &e:-ou»t to ^le latter f^ 
tb» ptrofita aado. All^a slalaed that the ]^rtn«irahl|> agr^i^iiftnt for 
alnlBg in Lower laliforaia was aot extend^^d to op<»r&tioiis in Moataisa 
uta vaf tersinated on ISaj 1, 1917. tiMi i^ttprese eourt^ in its opinic^ 
held (pp. 40^ 41) t **Th» bnsiaess of the partmrs2iip in Lovrer Califor*^ 
nia resulted in a loss of abont $II«<:k:d when the mining ofNursitions 
ver« abandoatd* Hand eoold bas« no rights in th« imrehas« and 
operation of nines in ^cmtana upon this agr^^^fnent hj itself « bnt ha 
and Allen eoold by ^gr^^ai^nt extend their eontraet to oth^r ooontries 
and other basinesa and for a longnr tia» than originally contenplated^ 
or ehange its terns, as they sight deea advisable « and sueh variations 
of ths eoatra«t« if nade^ Kay be ahonn not only by evidenoe of an 
express agr^esent but by evidenee of tha eondnet of thf parties. 
Bobbins v. Laavel^y 2? 111. 3^5." The opinion farther holds (pp. 
44, 45) t 

"^hile BaaA and Allen eontradiet one 8noth<^r throngteut their 
testiaony in aaay iap<»'tant particulars^ the corroboratij^ ^rid«)an«» 
vhen there is any« usually supports Sand. If Haad*s testimnqr is 
believed, th«re is as^e eridense to sustain th« finding that the 
partnership was extended to inslnde the Hontaaa transactions, and 
other 9vid'ne«, oral and doonsientary, tends to support this evidease. 
The ohane«9llor had tlsi s-dvantage of hearing both Hand and Ilea 
testify, and ae eannot say froa a eonsideration of all tbs ftvideata 
that tha flndiag that tlw buainess of the eo^partaership of Kaad 
it Ilea, doing business und^r the asae of the Faoifie Ore Coa^wi^^ 




&s.}lj(r««it Bin 
t$^mam»9 9dt lo 

shc«G.d b€ sxtsad-ad to i^M inalu^da th0 ©peratitm of »^ al&ias car 
siiaDS srhidh sight b# proeikr^ oi^ b<$h&If of th« partnership luad 
«hleh Um> pATti^tfaMp sight d^elds coold b« o:^ret«4l with profit^ 
was saaif^stly seBtr&rjr to the weight of the evidene©, Oa tSm 
contrary, ««? regard it « fair d^sSttetioa fr«»i th« «vid«iM»." 

Hvs rullfl^ In th» Sifi& <^^ ^^^^ ^^^ ^'^^ eouat«r to ti^ 
rul« laid doim in "nwilifft T- '"'^^ITi^fi &^ othsr e&S4»3« 

Hm d<»ep«« of th© Circuit coart of Cools county is 

•KlXivaiif ?• J.f and Friend^ J^^ ecssenr* 

■ixsn^'n^ ^d irfglB iS^tde aecflc 
^f!f t jaro^ l^l&X 9tn 




a corporation. 


'' 31 


George Love, plaintiff, filed a complaint for false 
imprisonment against Goldenberg Furniture Company, a corporation, 
defendanta Defendant filed a motion to dismiss the complaint and 
an order was entered dismissing it. Plaintiff appeals. 

The complaint alleges that about February 15, 1940, plain- 
tiff was a person of good repute and "had never been guilty of or 
accused of any unfair dealings;" that about April 27, 1937^ he 
purchased various articles of household goods from defendant and 
engaged to pay $300 for them by instalment payments and that he 
made instalment payments until the $300 had been reduced to $11^5 
that in 1939 ^^t ini copartnership with his brothers, opened up 
and operated a grocery store at 5^56 South State street, in 
Chicago, but that in August, 1939> the venture failed and plain- 
tiff was sued for possession of the premises because of his inr- 
ability to pay rent, and Judgment for possession was rendered in 
the Municipal court of Chicago against him and a writ off restitution 
Issued on said judgment] that the goods which he had purchased from 
defendants were on said premises and plaintiff being unable to con- 
tinue his payment of instalments on said goods notified defendant 
about September 1, 1939* "to repossess itself of said goods and hold 
them until plaintiff could resume his payments, but defendant re- 
fused to accept the return of the goods, whereupon plaintiff placed 
them in the warehouse of the American Storage Company and notified 
defendant that the goods were thus storedj that although defendant 

^avoj aoaoso 
I ^ri'iA'i'vioo aHDTii^Heg OHaswsajoo 

^noi;i-B'ioq'roo £ 
. ssXIsqqA " "■ 

.?io SET asiiEviJaa mjmadb soitsitg ^m 

sals'! lol d-flisIqiKco b belli ^lllJ-niBlq ^evoJ ogiosO 

^nold-Bioqioo s ^T^naquzoG o-ii/cMnii;^ S'lsdneJblox) d"8ni:B§i3 iaemnoziiqml 

briB ialslqmoo sitj- BzLneib oJ- noloom c fcslxl iaebasleC. sC^xlBfc^9l9f) 

.siBsqqB lll^fiisl'^ .ox snlaaxasilj baisd-ns bbw isbio ns 

-aislq tO^PI ^^I "^iBUicTs'"'-! d-Jjocfs j-BilJ aegallB ij-niislqcioo silT 

^o lo x^Iiirg fi99cf leven Jbjsxf" fcns scfuqoi Jbcog lo noaisq b sbw !tlld- 

Qjfi ^^£^J^ tS'S Ix^qA iijQdB isd& "jesnxlBsf) tlBl£W x^^ to teairooB 

Ms :fsiBb£isl9b moil aboog f)Iorieai;ox{ lo eeloliiB buojlibv beze.doisjq 

3d izdJ b£iB aj-nsfincsq ^tnoadCsJ-cni vd aisrld- 'lol 00£$ -^sq ot be^Bans 

jcjir^ii o;|- oBOisbei ae&d bsd 00£$ sdi llian aiaemx&q ct^aeeilBC^eni sbBci 

qu benoqa ^aisrWoid glri dsjiw qxriaisnd-iBqoo at ^eri ^£^-1 nx :}Bdi 

fix ^cJ-esid^e 9;t3o8 ricfiroS d^^^ jb 9'ioJ-s •^•193015 b bsd'B'i9qo fccB 

-v.-tBlq bfiB b&ltfil PiL'cJ-n9v en'd- ^^£^1 ^d-sxrauA al iBdi ivd ^ogBOldO 

"Hi ajtrl iO sa^fBoscf agaxmeiq srld" lo xioiessaaoq ^ol bessz ebw lll^ 

at b&'iQbasi aBW noxeaeaaoq 10I d'nsmabut ^hb ^:tfi9i -^Bq oct x^lIlcfB 

noxd-jLfdWasi lo d-liw b tns aiixi c^a^J:B§B ogBolfiO lo iivoo Isqtohwla. edi 

roi'i 698 £5iio'ii/q b&d sri iioxxi',7 sboos exlj- d"Bfld- id-nemgbi/t bJtsa no bevBzt 

-siQO oj- oXcfBni; sfilgd llicJ-fxiisIq bas seaiiiisiq btsa no ©i9w E:inBbaelBb 

0T£j3fcnsl9l) £)9.tli:J-on gfcoog btsz no ad-nenrlBJ-ani lo d'n9cr^3q sjtxl esmli 

hlod baa aboos blsa lo lloscfi aasaaoqsi ti ^P£^I ^I I9dci9:tq98 iuod& 

-5-1 d-asbnslsb d-ird ^B&aeu-XBq atd dmuesi bluoo llWnJcfilq Itiav taed;} 

fieoislq llid-niBlq noqjjeisflw ^aboos siij lo nti/^ei sdS d'q90OB oJ- Jb92xrl 

.59xlJ:d-on bnB x^BqmoO egBioctc n&otismA od) lo 9aijxiri9i6w edi at med& 

inBbn^leb fisx/ojrid-Is J-i'iIJ- ^benocta amid- 9i9v/ aboog sricf cffiflcJ- d-nsbnslgb 


bfitd k!u>wled2@ that its goods i»«r@ so stored it fil@d suit against 
plaintiff la the i^uiiieiiml coart 6f Chic&gOf und^r th? titl« of 
"Qo^^at^r^ Faynlt^^ Zemff^i^, & eornoratioHy Plaintiff ^ v. Qaqrga 
LoTOf i^^f ^riff^nti ^235^942;" that a copy of tkMt ttatftiasat of el&la 
filed tberdla^ iBarked plaintiff's Exhibit One^ is "attacbsd to 
this eoaplaint and e^ado a part heraofi" that in said st&taaieat 
of claijpi d«f9adant allogad that ''the dof^ndanty (cleaning plaintiff 
herein) f wllfaUy^ frsudolentli' ai^ saliolously refused to deliver 
thea (Benning the foods porchiised by the pl^intirf frcsi the 
defendant) vt^ to the plaintiff^ (aeaning the defendant herein) ^ 
and thereby cowrerted the sasse to his own use^ &nd wrongfollsr^ 
wilfully^ fraudolentljr and mlleicnisly deprived the plaintiff 
(meaning tie defendant herein) of the saawi** that all of these 
allegations were false and cilfully isaalieioosi that pric»r to the 
filing of said defendant's suit against plaintiff » defendant had 
knowledge that its said goods were in said storage G^ipany's ware- 
hottsej that defendant's suit was filed on October 13^ 1939» a»3 on 
Septeaher 29, 1939f plaintiff reoeiwed a letter froai said Storage 
Coapanjr advising hla that said Storage Coapanr ^^ received a 
letter fro« def.^ndant inquiring of tlie goods which plaintiff had 
stored with said 5t<xrage Oompangr and which fact plaintiff had 
eoisuunioated to defendant^ a copy of which letter is narked 
plaintiff's xhibit Xwo and "attached to this eonplaiat and 
made a part hereof*" 

"6« That when said case la the Itanicipal court of Chie&go 
filed by the defendant against the plaintiff case up for hearing^ 
plaintiff and his coanMl were not present^ and Jadgaent ^ 
default was entered against hia^ and thereafter* a capias issued 
out of the tionieipal Court of Chic&go on said ;}udgment retoraable 
on February 5, 1940* and plaintiff aas brought into the Muaieipel 
Court of Chicago on said capias* and was* on February 5* 1940* 
ccsnitted to the County Jail by the bailiff of said Municipal 

mi ftfiooi tit itidt •tfe«JDv9iu[ had 

.no M& n^'C^i ftCi 3®#3i5..5 jr> Milt «u6» ^l:»iB e*^iBUiisest-»&^jld^ t««B«d 
«-u.;..;: ';; .. :{tl»Xq^ ji»Ma- «#««>$i «j-.U to sfU'siJWjg\is4: ^jtta&B^'^f^^ af?-^ i«#t«I 

Qs*i»liii;i 1© t'iJmz'. lA-ql^JtsssM Mi$ ii/ w.*^.» M^« attiw larfT ^d" 

X4 yjdtt^kvt. Mi.% «iii9^st«>4$i| ^o«t «~N-3 .ff^fj»o9 «X£t bru ' , . 

&:3i^e&X a^&lqjftSr js i^ti»$%»ifKs.f^ bum ^isli: . . _^ ^ete^a^ ««r ^XMa1t*A 

Iji^t9i^iM auii &tiit ^tij^tm^4 aim faUalnJiti i«i» «0^X. ^ .. . :"i<f«t ao 

Court by vlrta@ of the said eapl&s ad satlsfael®a<!ufflf and fesislxwd 

in the Coanty Jail fr^ February ^, 19^» to A^pril 2, 1940, inclusiw, 

*7. That oa pril 4, 1940, a petition for writ of habeas 
corpus was filad la the Clreult Court of Cook Jounty, Illincis, in 
Case r40-«C-31^5 saxA that upon & final hearing on the said writ, 
plaintiff was discharged fron further custody after plaintiff had 
be'^n confined in the County J&il of Cook County, Illinois for a 
period of forty-<»ae days* 

**d« That the defendant veil knew that he, the plaintiff, had 
not been guilty of wilfully, fraudulently and oialiciously concealing 
any of defeni&nt's goods at the tiae the said suit ims filsd by de* 
fendant against plaintiff in the Municipal Court of Chicago, and also 
at the tisn the defendant sued eat said capias to attach the body of 
plaintiff, and at the tisie plaintiff was coamittod to the Ceunty 
Jail by virtue of the false, maXioioos and fraudulent action of the 

'*9* that idiile he was so iaqprisened ia the County Jail, he 
suffered greatly in body and nind, was iMMillated, peraanently lost 
the fssocii tion of his then wife, was deprived of the opportunity 
of exigaging in &ny lan-ful business pursuits and of any gainful 
ecployaeat and lost his ho«e« 

"10* tJherefore, plaintiff states that he has been dasutfed 
in the MM of $25,CC0, and Uierefore he brings this suit*** 

Exhibit One, attached to the ccnplaint, reads as followst 

"II US lenaoiPkL coort of Chicago •• nrst District* 

"ooLosiiiiui fmunTims coupakt, 





So* 2859942 

AMOunt Claiaed $20C*GQ 

"the clerk vill issue a susubosw ia the usual fora requiring 
the appearance of the defendant, at or before 9130 A* '^« on the 24th 

...^.,,i..fn.'^: ..^«'i XJt^l x^mi 

,«fe.-a-. ,^..^i4 

¥*S fe^X*^ 

u« <tsiJ }i : 

.i r.-w- -J OlO 

f .. . -T IV » i ... » .. r 


~<.>W \,JiJJi' 

<i •« *.<-**> '- . 


( ,iii. 

Dw.OOSe iMS&t^IO Jaifca;'. 




SYOJL aiL^ao 

day of Cotolterf 1939 

Attorne/ f^ PX&latlff 

'^Address for Sarvlce aad T@l«pho^ 100 So. LaSall® Strett, 

Pra. 1052 

*^tAfmmt m claim 

'*t)te plaintiff claiAS as follows 1 
**!• (M. ^ay 8y 1939* Uie defeud&fit vas In possesision of U10 plaix^ 
tiff *s goods of the v&lae of t!^ BSVimSD DOLLABS ($200,0G}f eoti- 
sistiof of tb» follovlDf t 

**1 vftlaat b«4y dr«S8«r and eh«st| 1 coil spring | 1 s«]^ea M&ttross; 
1 mlaat dining tabl« and 5 chalrs| 1 VelT«t ntg 9x12 rtst| 1 Bast 
Sofia b9d| 1 Jut« Hue '^a^^l 9x12} 

"2. Ob that day ths plaintiff verbally deaaaded the said goods of 
tlis defendant, but tba defendant «ilfUlly« fraudulently and sialic- 
oiously rafusad to delirar then up to tba plaintiff cuid thereby 
eonirsrtad tlis saa* to his own uso r nd wrongfully^ wilfullyp fraudu- 
lently and anliciously ddpriV9d the plaintiff of the saaie* 

"PLAirriF? CUIlfS mo tnnCDRES DOLLJAft ($200.00) DA!IA3SB*» 
Si^bibit TwOf attaohad to the eoapl&int« raads as followsi 

"Sept, 29, 1039 [I939] 

**]|r« Oao hov9m 
"5238 Indiana Ave. 
"OhIeagOf 111. 

"Dear Mr. Lovet 

"Pleasa be advised that we are in receipt of the letter 
froBi the Goldenherg Furniture Co, -1837-39 S State .>t., idierein 
they advise ns of th(? following artieles^ 8tor<»d in cnr «»reboiAse^ 
•tfvered by a conditional Bill of Salei !to, 70 bed| Ho. 70 dresser | 
Ie« 70 ^hestf Bo 429 pring| Seneca 'iattress| Ko. 122o/ 3peo« 
7pe/ dlnlag setf No. 3514H-^xl2 rug; 9x12 pad| Hust Sofa Bed. 

^Kindly advise us by lotter If this is so^ and we Most have 
a written authorisation fron yon whether it ia s&tlsfaotory with 
yoa for us to relinquish Uiese goods when they decide to remove 
then fron our warehouse. 

w-L&Is ItUnltiXCi' ttrfT*' 

fef^scl^-x xX««>io 


. f.V i, . « 

• Dsqa \oS:£X ,01 i8«t!»st^jall «09if»S (SOi l^a^dO Ot ••! 

•VAd ;^£iis «)w bun ^oa tl aid,? f)X t<( •« »8lv^« ^XJhai^ 

XeOi tmdm «Aoo3 «ntA$ jftlirpitJ^X*^ «i sir tan aox 

"TruBtlag 7ca give tMs matter ^oiir l£os£®diate &tto&tloaf 

•Tfours y^vy truly ^^ 
<*A»(irlc&n :>torag@ Co, 

"V. WiscegXia, ^g.« 

Defendant filed the following motion to disiaiss the instant 

"Sev eoMSf QOLSKIBlRa F^WITI^S C(^S>A!nff a 9orp<»ration^ by 
URKItTEIH^ HAOOESJOS 4 MOHARCH, its attorneys and moves tbst the 
above entitled action be dlaaiased and for grounia of said notion, 
•hovs as follows t 

**!• Said Complaint does not all'^ge that the eanse of action^ 
as alleged in Plaintiff U complaint, entitled GOLD MBi^vO FSRmfURB 
COUPAIIf a corporation vs. QSORas LOVK, ^^imioipal Court of Chicago^ 
ease #285994^2 (hereinafter referred to as original cause of action) 
was tercJnated in favOT of Plaintiff her^^in* 

'*2* That plaintiff's cooiplaint does not allege that the 
JudgBMint in the original action in favor of defendant herein and 
against the plaintiff GSORO^: X#OV^ it^s ever modified, reversed or 
set aside « 

"3* Plaintiff adstits in his Complaint that the capias in 
the original cause of action had issued out of the Municipal Court 
of Chicago on said Judgment and that said capias was accordingly 
served by the Bailiff of the sdinicipal Court of Chlc&go* 

"4, PUintiff^ GBOROE L0Y8 adbslts by his complaint that 
prior to his being coiBinltted to the County Jail by virtue of the 
capias ad satlsfaclendUB issued out of the unlcipal Court of 
Chicago, he appearedi before oas of the Judges of the Municipal 
Court of Chicago and had a hearing on said Capias, 

*'5* Plaintiff's Complaint fails to allege any want of 
probable cause, 

"6» Plaintiff *s Ccx&plaint falls to show nallce on the 

fart of the defendant herein, 

"7, Plaintiff admits by his Complaint that the Idinicipal 

» ;. ■ ■■ 1 


mt ^"' --V , yjowsooi^ ^BiSTa^aos 

a&u'^'U X.}. <u notice btilSltm ftvetf* 

■'.^ t [\J . f}4 V'! - . ;.. i. ^'...v i •'.4W ,, "^ ' : •....'...- ^.. j(j^ ittr^' .i..,.m ^M 

* "v. 

il^il»7ail) S*?^?8S^ MAO 

,i:,i'::':o/^ ;U-'fixi;ii lo 1»V«1 flt b«$9Mtsn9S turn 

* '■'- 

»ia^ ax> »Qll£si «oiic o^ «XJ:*1 ii- ' llWaXaX'i •^" 

•iil^iAd ;fa<te«t*l!^ titt Is Iojkx 


Ccort of Chic&go^ Cfts« #2859942 had jurisdiction of the 312b ject 

sattar and partl«s tttsreia] that plaintiff herein ms regalarXy 

s«rred bjr sVB&eas] that this pl&lntiff fll(»d his app^&raae* in 

said original suit totd that jvidgBRnt «as r9nd«r«d ag&inst tha prasant 

plaintiff 9 HimBBM LOTS, and in favor of dafandant, GOtD^rB^HG 

FURXXTtTRE COMPAXT^ in said crlginal suit« 

"8. That tha subject matter of Plaintiff •• Coapl&int l^ralB 
was adjodieatdd by tha JwicisKnt of the >*«aieipal Court of Chicsgo in 
tlW caaa of GCLDEHBUiG ^IT-mim^ CO: f a^JY ts G^oao^ LOVE #2S5994S« 

■nnBUVQWS dafaadant sores the court to dlsoiss Uia abota 
entitled eaoaa*** 

Tbfi sola question for us to detansiaa ia^ idiather or not tha 
oosplaint allagaa a food canaa of action. In tha short brief filed 
b/ appellant «e find no effort oade to show ii^rein tha allefatioiis 
of Xh0 ooBplaint aada max a priaa facia case of false IcprisoiaMat 
or 2;allcioas prosecution* !>on the tijaa of Blacks tone to the present, 
to ::oiistitut« the ch&rga of falsa iJEprisooBent thara are two raqni- 
sites, (1) the detention of the person, and (2) tha unlawfulness of 
tha detention, "Laprisonnent under legal process of a eoort having 
Jurisdiction of tha snbjeet natter cannot ba nada the basis of an 
aeUon for falae iaprisonawnt.'* C Fald v. Lcftis, 240 111. 105^ 107.) 
In tha instant oasa the coaplaint shows that plaintiff was arrested 
and ecmfinad upon a uuilAA id — t;^«fa*<,fiyim regalarl/ issued in a 
legal proceeding and upon a judgnent entered in a cause liaerein fraud 
was the gist of tha action. It is clear that the detention of pLaiJ»» 
tiff was not unlawful, and, therefore, tha ocaplalnt failed to aake 
•Ut a i^r^a*^ facie case of false ispriscuMaat* It is equally clear 
that the coaplaimt did not sake out a lyM!^ facie case of nalieloua 
proseeutiMi. In ic hwafta y 'fftnirtit 3^6 111* 247, 2^0 g tha court 

"Aa aetioa for salicious prosecution is coa for daaagos brought 
by a peraon agaiaat wAms a erisiaal proaaeutioa or a suit has been in^ 

3-wtni «u «a^s «^K •III ^ »M?^tigfi ■T,.li{htiWi(ft» *U .a»ZiJi»Moi« 

^ as 




• - 


tt-i 1^ - 

.'sJl «'^<3iX 

♦Hi a^ 

- »-- 



stitated ]Md.icl(m3l7 and without preteble c&us<»» Thii eoort has 
had oeeasion to s&f that the law doss not look with favt>r upon 
such suits. One of th9 9ss«Bti&ls of such a canst of lictloa is 
that the prior litigation eisspl&in^d of shall haV9 tcrmisetad In 
favor of ths dsfondant therein* " 

"In aalieious pros«cuti<m plaintiff mnst allagc and proTs 
ssaXios ax^ mat of prelltet)l« q&vlbq and th« t^trE^izmation of this |ro» 
c«0dinf faTorably to plaintiff," (2? C. J. 444, 445.) 

Hers vs bars a eass vbsre ths allegations of ths ec^plaint 
show that ths proessdings in ths l^micipal cocert did not terainsts 
favornbljr to thi» instant plaintiff. Dsfsndaat assigns othsr rsascmi 
in support of its eont<^ntion that ths action of the trial oourt In 
sustaining ths motion to dis&JLss %%s justified, but w@ do i^t dssai 
it ttscsssary to eonsidsr thsss otb»r rsasens* 

^ ars satisfisd that ths trial eoart was Justified in 
holding that ths ooaplr^int did not saak® eat a eass of faiss 
iaprisono^at nor of calieious proseeution, and ths judgnsBt 
order of ths Superior court of Cook county Is affirsMd* 

jmxiwmt mvm krnfaem, 

•Kllivaa, F« J., and Frisnd, J., concur* 





a corporation. 





Appeal of BEATRICE ^s^HART, 

-"^ Appellant. 

U. jGOUpT 



In a statement of claim filed in the Municipal Court of 
Chicsgo, The Girls Latin School of Chloego sought to recover from L. 
Edward Hart, Jr., and Beatrice B. Hart the sum of |840,72 for schooling, 
luncheons and supplies furnished the two children of Beatrice B. Hart 
for the school year commencing in September, 1939 and ending in June, 
1940» A trial before the court without a Jury resulted in a finding 
and Judgment in favor of L. Edward Hart, Jr., and against Beatrice B. 
Hart in the sum of $840.72. She appeals. 

In 1936 a decree of divorce was entered in the Superior Court 
of Cook. County severing the bonds of matrimony between Beatrice B, 
Hersey and Edward L, Hersey. The decree awarded the custody of the 
Mersey children, namely, Jeanette then aged seven, sJid Daphne then aged 
two years, to Beatrice B. Hersey. On September 4, 1936 Mrs, Hersey 
married Mr, L. Edward Hart, Jr. In the fall of 1936 Mrs* Hart entered 
Jeanette In The Girls Latin School of Chicago and the bills for her 
tuition for the 1936, 1937 5md 1938 school years were sent by the school 
to Mr, Hersey, the father of the children, at his residence at Sarasota, 
Florida, a duplicate being sent to the defendant Beatrice B. Hart at the 
Hart home on Chestnut Street in Chicago. In the sximmer of 1939 Beatrice 
B. Hart filled out and transmitted to the plaintiff an application for 

,nci:?Biocnoo b 


( .V 


SDIflTASa bas .<f«Tr ,TRAH QRAmS. ♦J 



,TRAH \€ aOr«?TAaa to I«6qqA 


.THI: JC lJ<<IRI*iO 2HT a^HSVIJjia axmjS 3DITBUL CHIGI^*! .HM 

■ .,f ■I 

D •il 'ii^vco'i-i oi it{-^uo9 oasoirlO lo loodofi niVsJ EltiS ©rfT ^ogsolilO 

0" H .Q eoIi^ssS lo nei£)Xlxio ov^ edJ f)©jrf82n*ii;t aeiXqgi/B JE>n..3 enosrioni/I 
,©xiirL ni :^nlbae btip. SSGX ^leo'tee^qeS ni snioneaimoo irs^ loorfoa 9ri;t lol 

.a eoIiJadS ^faiiJtsga fins t.^tt ,*neK frtawsa .J t© •xcv,?l ni ^tnsmgfiij^ baa 

.elaoqqjB ©ri8 .2V.0*'8$ to ewa ©iiJ nl JisH 
Jii/oO lotiBquQ 9!ii al bei9iae asw i&oiovil!) to ©eioaJfe b 85GX nl 

,a aoln^fjssfi naewJscf xfloif-t'J^Bffi ^o ebnocf edcT gnlnevda ^itnuoO iooO to 

&i1;t to Yi'Ojsuo 9iit bebiBVB eenoeJb sril) .■\j9BieH »J £rtBwJ&a fena '^sineH 

fiegA UBdi enxiq^Q baa ^a@V9s b^-gz siehi 9itstia9\t ,'?X®flifin ,n»i6Xjtrio x^bisH 

ii»an©H .anl^ ©seX »*• lecfroeJqee aO ."^EaeieH .8 eolT^saa o:f ^aiae'i ow* 

5sie;rn9 JiaH „8iM dcex to IXat exl;? nl .nL ,*i«H Mavfia .J .iM f>»l-xiAii 

isii lot aXIicf ftdJ bns cgjeoIriO to XoorioS ni:f»J aXTiO eilT nl 9;t*«nsoI. 

Xcofioa t)Ai -^cf Jnoo ©i»w criJseY Xooxloe 6ZQ1 bar VZQl ,85QX ©xU" ict iioi;fli/* 

jbJobis'isB :fii ©oneiiaei 8-Lri Ja ,n©*3t^XlrIo exit to leri^Bt ©riJ ,x»8'i®E •'^^M o* 

©lijf Ja ^TtJsK ,S ©oliJeee Jnafinst©!) ©xlJ o;t tnsa gnlscf ©JijolXqwA £ tsJ&lioX'i 

©oliJseS G56X to ismmue ©ricT nl ,03sx>oiriO nl J©©i*8 JimJaeriO no ©Bori a^isH 

tot ;•" ' » '.^Iqqa na ttl^rnlclq ori:f oJ fceJJlK?" ""^ ^^" r^uo f)©IXJtt ;r'5aH .S 


the entry to school of her younger daughter Daphne, who vas then old 
enough to go to school, Mr. F\ilton, plaintiff's treasurer, communicated 
with defendant's husband, L. Edward Hart, Jr., and stated that 
Jeanette*s tuition for the two preceding years had not been paid in 
full and that it would be impossible for Jeanette to return to school 
for the ensuing year, or for Daphne to enter the school with that ac- 
count remaining open, solely upon the credit of Mr. Hersey. Elizabeth 
Singleton, plaintiff's head mistress, testified that Mr. Fulton had 
died; and that Mr. Hart told her in the fall of 1940 that he told dece- 
dent that he (Mr* Hart) would be responsible for the tuition of the 
children for that year, but wanted "some legal notice so that he could 
later collect from Mr, Hersey, " L. Edward Hart, Jr. testified that he 
stated to Mr. Pulton that while he did not intend to guarantee the past 
due account and felt that it was Mr* Kersey's primary obligation to pay 
for the schooling of his children, he would guarantee the future account 
of the children if there was any question involved of their being able 
to re-enter the school. The conversation with Mr. Fulton occurred in 
September, 1939, Following this conversation, both children were per- 
mitted to attend the school for the 1939 school year. Tuition state- 
ments were sent by the school to both Mr, Hersey and Mr« Hart, It is 
conceded that the amount of $840.72 claimed to be due plaintiff for 
tuition, luncheons and supplies furnished to the two children of 
Beatrice B, Hart during the 1939-1940 school year, is reasonable and 
has never been paid. 

On August 18, 1939, a few weeks before the school term com- 
menced and about the time of the conversation between Mr» Fulton and 
Mr» Hart, Jr., a stipulation was entered into between Edward L, Hersey 
and Beatrice B, Hart and filed in the divorce case in the Superior Court 
of Cook County providing that all previous agreements regarding the 
support and maintenance of the two children were abrogated, and that 
Edward L. Hersey should henceforth pay to Beatrice B, Hart a sum equal 

blQ aeA^ B&v oriw ^nadqn^ '■t^:ni:^yjy tsgm/cY i*?ri 'to loorioa oi^ x^in^ erij 
hetBOltissBiMiQO ^t9iuBB«t^ s ' ^Iti^^nisXc ^rioiIts% ttU .Xcoxioe c;f 03 o? riguone 

nJt Aieq fi3©cf ^o« bssl bias^ siii;I)»3®^q ov/lt ^fi? lOt noiJixrcf e'e;f^efls»L 
loorioa oJ atL'^st ct «?;f©f!s»X. lol: »XcflaaocjMi «cf tlwow ?i *«xt^ Ana llu\ 
-0J5 ?sri? riifiw Xoeiioa edS leJn© oJ ©HJlgsQ fe"* to .-sasx gnliuane eri* lol 
dindsslIZ .-^esieH »fM ^0 JJL5©io BdS ncqv \I9I0a ^nsqc aninisiHet cfm/oo 

-so®f> 6Xo;r »fl ?.8XlJ Oi-eX ^o £Ist eri? nl lerf 6X0J *ibK .iM ;Jsilf fins {be lb 
Qdt \o aolilut 9riJ *iot ©Xcflanoq^en acf feXuov (Jiefi ,iM) •;! ^axi;f j-nafi 

sxl 3'sriJ 5eili;f3©J .iX. ,*n«H MjbwBS .J '♦«x»*'*©K »'JW "^c«'!f^ ^tosXXoo na^jsl 

Jsjsq srit ss^nB-XBifS c;J- 5n«:fni ton bib ax! allriir *sitt noJIw^ «nM o;J^ fiaJ^aJa 

^eq oJ flolJBgiXcfo '^laffijtiq a'x««ieH »iM aav d"! ^bxIJ JXs^ fins itnuooos sefi 

Jxmoooa a'ii;;t0t arW ae^ngijai/s fiXwow »d ,fls*i.&XXrlo aXri lo gflXXooxloa ori* lol 

eXdfl gni«tf iJtsfiS^ lo fievXovnl nolJ'eaup -^njs «bw 9i9di tt nat&Xlrio axlJ lo 

nl fieTiJJCOc noJIw'? .iH ri*lv noJt^saievnoo edU ,Xcorioa Bdi iai'fl«-6i of 

-^»q ©i9vf HSifiXiJio xitocf ,nolJssievnr.5 alridT gnlwoXXo'? .Ssex ^lacfae^qeB 

-9^B^e aoXd'XuT ,xe9X Xooxloa eCQX ©xlf ^e1 Xoorioe ariJ finaJJa 0^ bBtStm 

&t :il .*isH ,iM fins x©a'J«H ,iM ri^Tocf o;t Xoorioe Bdt id iaea, a-xaw a^aaM 

101 lll^tilBlq eiffi «cf o* fiafflisXo ST ,0^6i^, to iswotaji ariJ *sri* fiafiaonoa 

Ic neifiXJtxlo ott* oriJ oJ fierlairrfyt aelXqqws fin« ancaxlonuX ,noiJiu:f 

fins eXdB«oa«9i »1 .isst; loorioa 0^eX-G59X sriif -galnub iisR »a aoli;rBef 

.fiiaq naacf naTan aaii 

-ffloo BTxecT Xoorioa ©ri* ©totad a:rfee^ ^*st s ,9561 ,8X taw^uA nO 

fins ao^fltfi .iM nsewJecf noiJdaiavnoo «ri;f \o ©mi;? ariJ Jtiooffi fixis fiaonaa 

ijsaieH .J fiisvfia naawtacf oJni fieiaJaa aair noX:fi»Xwql^a a .JiaH ♦iM 

*ni/oO lo/iaqx/a eri;f nl eaBO ©oiovXfi eri;t nt fiaXit fine JnaH ,8 aoii^asS fifia 

eriJ 8nifin«8«9n aJnafflaaia* aooiTaTq XXb *ariJ anifilronq x*«ucO iooO *!© 

tffirid' fin.e ,fi9*is30ida 9i9W naifiXXrio ov;f sri? to 9onafl9*ni«9« Afls tfToqqua 

Iflirpe tsua & Ji«H ,3 aoXtJflaa oJ Yaq ric^iolaonari fiXworia X9»^»H •'^ finavM 


to 25^ of his monthly income, payable on the first day of each month 
beginning July 1, 1939, as and for the support and maintenance of the 
children, provided that if, as and when 25^ of the income of Edward 
L. Hersey exceeds the sum of $250 per month, Hersey shall thenceforth 
pay to Beatrice B, Hart the sum of $250 per month as and for the sup- 
port and maintenance of the children. There is no evidence to show 
whether or not Beatrice B, Hart received anything from Edward L, Hersey 
for the support and maintenance of the children pursuant to the 
agreement of August 18, 1939. L, Edward Hart Jr. contended in the 
trial that he had not agreed to pay the account as the principal debt- 
or, but only in the event plaintiff was unable to collect from Mr, 
Hersey, and that no recovery could be had against him in the absence 
of proof that plaintiff had made an unsuccessful effort to collect 
from Mr. Hersey. It appears that Mr* Hersey had written plaintiff's 
attorneys denying liability for the account on the grotind that an 
order entered in the divorce proceeding pursuant to the stipulation 
discharged him from any personal liability to the plaintiff for the 
subsequent schooling of the children. 

Beatrice B. Hart asserts that she did not contract with the 
plaintiff for the schooling, luncheons and supplies furnished by the 

plaintiff. Plaintiff insists that she is liable for the tuition, 

luncheons and supplies fumished^her minor daughters. The record shows 

that Beatrice B, Hart placed the children in the school for the 1939- 

1940 school year. At common law the status of a mother was such that 

she was not under legal obligation to support her minor children where 

the father was alive and able to do so, but since her emancipation by 

statute she has become possessed of the full enjoyment of her earnings 

and property and is legally responsible for the support, maintenance 

and schooling of her minor children equally with her husband. Purity 

Baking Company y. The Industrial Commission . 334 111. 586; Hoover v. 

Hoover . 307 111, App, 590, 603, Defendant concedes that a mother is 

under a duty to support her minor children, but argues that she is not 


dinom do»e 1o x&i) Jsiil exliJ no sIdBifJsq ^%taoonl xLdittcm ntd lo S^aS oJ 

Bdi lo 80iiiBn3d"rtlBia X^flos. J'xoqqwe edS lot Bab bm ,6561 4! ^Xi/Xi sulnnisecf 

friBwBfi. lo ©ffliooxtjt ©jC© lo ^6S flsjEtw ^flB &£i <11 cTflilJ J5>©f)J;r<yxq »n«'x6Ilrio 

rid'TLolscneri.t Xlj&rls YeaieH ,jti*noni t»q OdSl lo biub sxW e&saoxe -^•artoH .J 

-qua t. , riJiiOK 19<? OfiS^ lo mjs exlJ J'l.aH ^a Botti&9S. ot x&q 

wods 0? 9on&blvp on sx sieiiT ,n©i£>XiJEio sdi lo Bon&a^tnlBm Jbrus (fnoq 

\n&i9U*d fs-jBwM fflcwl snlri?Yfla JbevlQo©*! iisii .3 eoit^seH ^on no tsdiedv 

siit o? ^tfiBuaii/q ne'sfilirio sriJ Ic soaeno^nliaiB, fins ^fioqqwB 9dt lol 

©ild" ni &o£)fi©;fnoo ,il» JiisH £)'j^^w5S ,J *e5GI ,31 iBU'guA lo Jnsfflse'xgs 

-*ds£! Isqloxiiiq ©ilJ a^i Jatfooos ©£fcf x&c oS BssigB Jon fieri eri tadi £&lii 

,iM iap^l Joelico o:f ©Idsni; sbw lliJnlsIq ^nsv© ©rlJ nl "^Xno Jx/cf ^10 

9tia,9A(i» 9£i;f nl sixi isalsj^ b&d wS blsjoo '^levooei on ;r$ri;f bf|0 ^X^i'^dH 

JooIIoo o;f dfiolla Iwleasoousiw a© »l)aa^ J&ari lll*nl»Iq *biW lootq lo 

_ 'llWiiiAiq neJd-iiw bsad ^seetsH «iM ^sriJ siseqqa ;tl .^saieH .iM moil 

n» itsjd* J&mjoia Qdi no ^Jrmooos ©rUr lol li^lIidJBlX 8ni,x^ef) ax©flioJ;tB 

noiJ«.Iuql*e axi^f oJT inausnuq ^ntb»90Qiq »onovlx) sri^f nl f)9a©Jn© neMo 

edi 10I llirtnit^r o^i,-,- o:t Tj3-iiid«ix Xsnoeieq ^aa monl mid fi^giArioail) 

.nsiBXirio ©xl* lo ^niloodoa in'^r'<-"'°'^'!a 

©rl3^ ri;Jiw ;ta-.i*3d"noo Jon bib ©iia iJ'iUtf sd-isaajB JibH .S ©oXiJssa 

oriJ Y^ &©ri3inti;l aaiXqqifS bnz enoerioni/I ^gnXiooxioa ©rid' lol lllJ/iiielq 

^clQlii^Jy 9di 10'i ©IcfflJtX eX ©ria *Bd:f aifaiafiX lli;rnlBX^ ,lli;tnlBl- 

awcrie Mooai ariT .^t&^d^u&b loalm iBd^b^d^intut B»tlqquQ J&fia 8no©rfom*i 

-95eX 9di icl Xooriop sdJ al neifeXirio 9di feaoaXq Jt:«H ,S •oi^;fjB©a iadi 

;f6ri* ricwa a^v leriJoffi .b lo eaJsJa ©riJ w«X nomooo M ,ib»x Xoorioa oex 

©I9riw flsi£>Xirio lonlffl lad tioqqwa ccf colJssiXcfo XisjeX TtsBni; Jon asir ©ria 
Tjef noiJaqlonAffi© i»d ©oaie Jjyd" ,oa o£» oJ oXcfe £)/!« ©vlXa aaw •tariJsl ©riJ 

aBnintB© i©ri lo :rneffiTsot,ne Ilut 9di lo ^©©eoaaoq ©moo9cf aari eria 9tutBii 

©onaflei^nism t;f'ioqqtf9 ©ri? lol ©IcfX8noqa©i xXXagcX al bOA i^i9qortq bas 

z^ltu'l ,bnBdeud ted riitiw xXXiStfp© ii©^Xirio •xonim "XQri lo gniXoorioa fina 

.V nsYooK {885 ,XXI KJC . npJtaalauBoD XBXi;^8uf>nI eriT .v YHBaflioD anlafag 

ai leriJoffi & i&di aoJ&aofloo iaAbaoteQ ,500 ,,oee .qqA ,XXI 705 . laTooff 

*on eX ©ria JariJ eauaia tfwcf .netfcXXrio lonXm tsd Jnoqqua o;f x^wli a i9bau 


liable for a contract which aom« stranger mskes for the educe t ion of 
her children. The evidence shows that Jeanette was entered in the 
school by the defendant in September, 1936, after she had remarried. 
In the stimmer of 1939 Beatrice B* Hart made application for the admis- 
sion of her daughter Daphne to the school. This application was for- 
warded from the country home of Mr. and Mrs, Hart at Harbor Springs, 
Michigan, There is competent evidence in the record to show that 
Beatrice B, Hart undertood the responsibility of seeing to the education 
of her children. The fact that the father of the children is also 
liable to the plaintiff for the tuition, luncheons and supplies fur- 
nished to his children, does not in any way relieve the mother of her 
obligation. In our opinion, substantial Justice has been done in this 
case by the entry of a judgment against Beatrice B, Hart. 

Defendant also urges that she "is not liable under the family 
expense statute for the necessaries supplied for her daughters under a 
contract between plaintiff and defendant's former husband since these 
necessaries were furnished a^ter she had been divorced from her former 
husband end the family relation had ceased to exist." As we have dis- 
posed of the case on another point, it is unnecessary to consider this 
contention. Therefore, the Judgment of the Municipal Court of Chicago 
is affirmed. 



* • 

lo aciS'^o&lbe 9sii •sol t^aisat tssiiaiiTa pmt'St Aoldv *o«"t;t/ioo z lo'i »XtfalX 

-gJt«Sft sii;J lOi nel«fsoliqo^ 9b&m S^eM M *»l'j*e»8 GSei to iBrnteue 9iit al 
"tot Sjgw eelJ«oiIqq« siil'J *ioodoa &£[? oS enriqjad i*;rxls»sf> leil to nola 

noi^t^s 00X50 eii:? oJ 3isis«« lo x^ lIXdl&aoqaQi 9dtt b&ottebait tnoB ^ «oiT*s9€ 

oelis 9i fisnfillsLo ®£f;f to ^»dt»t «xt? cl-ailJ #©9^ arif ,fl««t&Iliio tad lo 

-•si/t 8slX<jq(wa ijne; 8flo«r!©aifX jfiol^Xx/^ eii;t ic^ md^ni:«Xcr •fiS' oJ «Icf«iI 

'xerl lo isfiycfli »iS;? ©vftiXs^ t*'*' '^^^5 ni Jon sso& ,nsi5Xiiio aid 0? liaiialn 

alrii' ni escf) uescf aaiCl saiJsx;^ XjBiJnsJa^fifa ,«©ini<?o ^wo nl .aelS^BglXdo 

.J-s-sK ,S aoltcfAaS ifanls^js Jfiee^birt s lo ^«x*ne eriS^ -^trf ease 

Xli^sl ©rid" 'isfimi aXdsiX ion il" tjfie itoricT aagii; oaXa in^iliaGtBd 

6 'isLfii; aie^d^ifaS lari 10I fealXq^wa ealrcfieaeosis 9ri;t 'xol o*i;;fBJa aenaqxs 

©aaxiJ sofiia bazdsuti. •safiwot a •Jn.^fins'iafe fioa Iti^TnijaXq jaa»w;t«d' ;t'Oj«iJfioo 

isffi'iol lofi Jaoil h&9^iivtb fl&®cf foarf e/la *5©*l0 bBi'mlatut stew •ax'x&sseoan 

-aifi ©vsii ©w aA ".?aixs o;J Ijeacao l>«ri noWaXai xXlsust effct J&iib btt*d9ad 

Birf;t laJ&ianoo ot ^saaaoanntr al *i ,*fJioci *tsi1tofOi cro aeso ajcJJ lo beaoq 

cgjjoIiiO to tfis/ov) rBqiei/awM sxU to 3'fiaiBgauf, f»il:t jaicte'^eifP .noi#fla?iiao 

.iiSflrrittii ai 





COMPANY, a corporation, 




In passing upon a rehearing thst was allowed by the 
co\irt to the plaintiff in the above entitled cause, and to which 
the defendants filed an answer, we will consider the questions as 
they were presented by the parties. The question that is involved 
in this rehearing is whether the plaintiff erred in not setting out 
the instructions in full in the briefs thst were filed with this 
court and upon their consideration specifically referring to the 
instructions which were set out In full in the Abstract, Record and 

the Reply Brief* 

In considering this question as it cajne before this court 
we re^^ched the conclusion thet in not setting out the instructions 
in full in the brief the plaintiff did not comply with the rule as 
it was established by this court, thst it was necessary, in order 
that consideration might be given to the questions involved in the 
instructions, to set out the several instructions in full. Plaintiff 
not having done so, this court applied the rule ss it was established 
in the cases of Cory v. Woodmen Accident Co», 253 111* App, 20; 
Sterling Midland Coal Comoan:/ v. heady & Callashan Cfial Company , 
236 111. App, 403; Wasilevitsky v* City fif Chicago. 280 111. App. 531; 
and Zorger v. Hillman's. 287 111. App, 357, /Vnd in considering the 
question we were impressed with the opinion of this court in the 
case entitled Spencer v. Chioafco and North Western R^.. Ccl«i 


JsaaH SLOi. . . A 

■d!:7 'Z'.i ixr'.-rci'l;; 3 3w j.ifiT gfiiljEiOilsi 3 noqki gfiiaajeq nT 
ii&liiw oS flits ^asi/BO &©rti*rr^ svc ' ' lllialalq eriit oJ d-nuo* 

Sij itdi lafiisnoo ff/v - , -:^£;n3 rua 6*'-" ^jDnslsfi sxi* 

Savlovai si iteiii aoiJesi/p •r!T naeix^tsq 9ff;t xd &s>r-i9d3iq snsw ^sri* 

airier !itl\^ E>8l.?t ©I©-' :fp^ri* slssi*s€f &tti al IXirl nl snoltOi/iJanX srit 

%ii^ ot 'gtiJ^ttsti^t YlXaoitloe^^^ noi^ii'S9btsnor> ilBtit aoqu has t*woo 

m& cioosii i3'o«t*8CjA arfd- ni lint ni iuo #d5 »*i»w rioixfw iftolJou'tJsni 

•Isina ^IqoH sxitf 
J'luc's) al/13 siol-sa etnas S.t s^e noi^tssup 3lf.i^ gnltsDianoo nl 
and? ajji:f 3 ni sriJ Juc goiirJea 3'on al Jari* noiawlonoo srf? ^erio-sa'i ow 
8fi slui ©flJ rfJiw xX<^®C" ton 6iB 112;rnlsXq arit laiid arlJ ni IIul ni 
•190'xo ni ^^laeaeodn asw Ji tMdi ^vt-ujoo sirf;t xd fierlaildaJae bjbw tt 
9ri;J nl bsvlovni anci:f99up sift o^ navlg 9tf ^dsiin floiti^iofiiaiioo J^J 
T;liJni8rT ^IIj/1 ni anoifoiJ^lani X319V98 eriJ juo *»3 o* ,9^oi:^o^/•x;ra^i 
69rfaiXd.3;rea »sv iTi sa aXui erid^ feeiXqqs Jiuoo BlAi »08 ©nofi snivari ;fon 
;02 .qcA ♦XXX BSS »,oO in^blopA ft^g^opW ,y ^'xoO lo aeaso eflJ ni 
«i:fiQ<;(gpQ JAQ^ n ,grl. 1«X^D t jMSJI *^ /n.^qiRop X.aoD i)nitX£>iM ^^lLCIS^ 
;I6C .qqA *XXI 03.9 . oygoiriO I2 Y^XO •▼ •gaCa^TiTaXJaBW ;S0* .qqA .XXI di 
9riJ sniisbianoo ni i'lnA *VQZ -qqA .XXI ?fiS ^a'nfflaXXXH «v ncssttoS hr 
QfiJ fli cfiuoo BirlJ to noiniqo siU ditv feeaaeiqmi »19W 9*- noi.i 

t >yO * yH Jilted a aVv' ri;fipK( ong OiiBpinO .▼ leongg fi fi«X*iJn9 ^zac 

249 111* App» 463, vrhere the opinion of the covu?t was delivered 

by Mr. Justice Wilson, speaking for the Third Division, who said: 

"Counsel for defendant raises several objections to certain 
instructions given on behelf of the plaintiff* while these objections 
were argued at length in the brief, they are not set out in full but 
referred to by number. This court should not be required to search 
for such matters but they should be contained in the argument* 
G-eneral Platers Supply Co > v. I'Homciedieu & Sons Go#, 228 111. App. 201* 
It is attempted to cure this, however, by restating the instructions 
in full, together with the arguments thereon in the reply brief 
filed herein, but this does not cure the objection. We have examined 
the instructions, however, and do not find that there is error 
sufficient to cause a reversal of the case*" 

Subsequently the question was before this court in the case of 

Jones V. Keilbaoh . 309 111. App. 233, and upon a like question this 

court said: 

"We have considered all of the objections of the defendant 
to instructions which were given on behalf of :^laintiff and as to 
two instructions which were refused upon being tendered by the 
defendant, and have concluded that there was no reversible error 
in the giving or refusal of such instructions. ie believe, however, 
that this case furnishes an appropriate opportunity to restate a 
rxilin^ which has lon^ been established in oxir Appellate Courts, and 
which should be adhered to by litigants in the presentation of 
objections with reference to instructions in this court. As was 
stated by the coxirt in Cory v. Woodmen Accident Cp . . 253 111. App. 20, 
at page 35, 'Complaint is also made that there was error in the i 
giving of some of the instructions for the appellee, and in modify- 1 
ing some of the instructions given for the appellant, but the /\ 
instructions sre not set out in the brief and argument, but merely 
referred to by designated numbers. The questions involved are 
therefore not nrooerly before us for consideration* ' ( General 
Platers SupdIv " Co", v, Charles F. L'Hommedleu & Sons Cq.., 228 111. 
App» 201; Sterling-Midland Coel, Go. v. Ready & Callau'han Coal Co.. 
236 111. App. 403.) In the instant c.^se none o7 the instructions 
as to which objections are raised by appellant are set forth in 
the brief and argument, but all of such instructions are simply 
referred to by ntimber. This court will not, therefore, give detailed 
consideration to such objections In this opinion." 

The fact, however, is that the plaintiff in this action 

in the petition for the rehearing does not follow the rule in her 

argument, but states that "it will be noted that the defendants' 

instruction number 2 is a peremptory instruction as set forth 

in haec verba on page 45 of appellee's brief; also, plaintiff's 

Instruction number 2 is set forth on page 44 of appellee's brief; 

bB'xeyllB woo 9- Iniqo &fii Qi^cbf ^GS^ *ciqA .III 6^2 

- B V-ari? j'e lot 

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;if owJ 

al ano ■ 


•Biocfffii/n f I at 

V 15 91S; . -xcf adi 

nol^Oi aldi nl X'iliat&Ic! 9x1^ i mH bI ,iev9wod ,;tOBt sriT 

t&d ni slut %Ai volloi Soa u9ob gal-xaerffti aria- 10I nolit39q 9tit nt 

ditol teo as aoliovi;f»lHt^o'>iqm9tt^ •: lecfrnx/n rtoi;t owls' in 1 

^1 ' ItlJ^aJCfilq ,oal3 ;l9lid s'd^XXeqqA lo 6*- s sdiev pe.34i gj 

defendants' instruction number 3 is fully set out on page 48 of 
appellee's brief; and defendants' instruction number 5 is fully set 
out on page 49 of appellee's brief; defendants' instruction number 7 
is fully set out on page 51 of appellee 'e brief; defendants' 
instruction number 8 is also fully set out on page 52 of apoellee's }sx. 
brief; defendants' Instruction 16 is fully set out on pages 53 and 54 
of appellee's brief. So we h?ve all of the instructione fully set 
out in the Record, in the Abstract, referred to by number and 
Abstract and Record pages pointed out in the Brief with the error 
incident thereto, and seven of them fully and completely set out in. 
the brief of defendants-appellees, in which brief the other instruc- 
tions are discussed and described and then again the instructions 
are set forth beginning on page 10 of the reply brief of plaintiff- 
appellant* " 

The argument that is offered is not in line with what 
has been suggested by the Appellate Court. The Instructions shall 
be fully set out together with the objections that are offered, 
that the court may consider them and pass upon the questions that 
are Involved. It is to be regretted that the plaintiff has failed 
to comply with the rule that we have called attention to* 

Again in the petition for rehearing the plaintiff usee 
this language: "In the instant case counsel for plaintiff-appellant, 
specifically criticized the instructions in the brief on pages 
25-23, 30-38, 39-45, set them out in full in the reply brief on 
pages 10-24, in numerical and chronological order, and specifically 
referred to the instructions set out in full in the abstract and 
the record (Abst. 39-59; Rec. 394-418), by giving the page n\mber 
to the abstract and record for each instruction set out in numerical 
and chronological order. " 

: oi;fou'xJaflj:; ♦ e;©f> ;*!«lia ^ • oelJjs^c/s' tc Q> *^a<;[ ne iuo 

.03 'tiXw^ anoi^owiJsiiil srii 2 .leiio' s*»9XX»qqie to 

fine liid'iii/rj "©■stslo'i «?osi;faci« erfJ ni jfjioosH edJ nl Jwo 

toil© aiiJ fiJiaf tal-xS 9£ii ci s^uo fiaJnloc; segsa feiooeW 5ii« ^eflifttiTA 

ni tsjo "93 \X9JoIqmco &ii.s ^IIw*^ inarit ':o n©v«8 bfls ,oJeierlJ :tn«J!)loflX' 

-o^;^*3^x 'X9ri:fo srl:f "islitf xioiriw «1 ,B»8XIeqqfl-8JnBfin»'i«& lo lalna" sil* 

-lli-J/ l&itQ tlq^i - ■ininnljfscf citiol Sb9 eiji 

" ♦JxtaXXeqc % 
'zsii *n»jBtf3Ta «rfT 
IXsfia Bnotiojit^uaZ aicffi ,;?te«oO 9??.IX«qqA sjcW \dt beta^.VfjsB nssd aj&d 
,i?^o V- ii% iei#o«t<i^o t^* fitfiw tarid's^iocf too ^oa xXXirl aOf 

!0Gllr,1 aari lll^aisXg orliT iiiJii J&tfJ.eisa'x ad oJ' ? .ZisvXoTnl mtA 

i3^n»JJ» be ixeo «Tjad aw ^adi sXoi: erW ril.fv X-f<I«"«> o^ 

8980 lllcTnlaXa ail* attiis^iie -iJiJeq ©riJ ..a 

tJnsXXsqca-llitf/iXAX ^bd inBi^al sritf jfjT" caaawsnaX ■iritf' 

3£j?,fu,: no iQito axiai;fowt:^afl4 SfiEf;^ pasloi^lto YXXaoiliosqa 

tid ^Xqai ejiii- a.t Ilulni ttuc etQdf i9% ,©^65 ,8C-0C ,8S-e2 

TClX3al*l;il)©q8 fins jisfito XsoXscXonoirio &fis Xsoltanian nl ,*>S~OI negAq 

f)fi3 Jos-xJadB erlj aJ: XXwl al iuo Joe attot^ou^ii^ai. QciS oJ bsirtalsi 

lecfgBun 9^q ©it;? gnivXs tjcf ,(eXfr-i^G5 .o©i? ;C3-<?5 «*«dA) u^oo^•I ©xlj? 

Xflo^'isfflun nX vTiJo 3 ©a noXJoiiid-anl eIob© tol Siooen; Aha JoA'x^acfji ariJ oJ 

* .'x©f>io Xar -f>ioXofloTrio fins 


So that when we oome to consider them the court is obliged 
to follow the suggestions that were offered In the brief of the 
plaintiff and examine the record, as well as the abstract and the 
reply brief to determine whether the questions were properly before 
this co\irt« 

We, however, rerched the conclusion under the argument, 

such as was offered, to consider the instructions for the purpose of 

determining whether there was error sufficient to justify the 

reversal of this case, and in the examination of these so-called 

errors that are called to our attention we find that the plaintiff 

complains about several of the instructions that were refused by the 

court, and in order that they may be properly before the court we 

have had the instructions that we have In mind copied, and they 

are as follows: 

"(3) You are instructed thst at the time of the happening 
of the accident in question, there was in full force and effect 
a certain ordinance of the City of Chicago knov:n as Section 
52(b) 2 of the Uniform Traffic Code for the City of Chicago which 
was in words 8.nd fii^ures as follows: 

•(b) The operator of a vehicle, in overtaking and 
passing another vehicle, or at any other time, shall not drive 
to the left side of the roadway under the following conditions: 

•2. ifnen approaching within 100 feet of any 
bridge, viaduct, or tunnel, "or when approaching within 100 feet 
of or traversing any Intersection or railroad grade crossing*'" 

"(4) You are instructed that at the time of the happening 
of the accident in question, there was In full force and effect 
a certain ordinance of the City of Chicago known as Section 16 of 
the Uniform Traffic Code for the City of Chicago which was in 
words and figures, as follows: 

•(Pedestrians' Rights and Duties at Controlled Intersections*) 
At intersections where traffic is controlled by official traffic 
signals or by police officers, operators of vehicles shall yield 
the right of way to pedestrians crossing or those who have started 
to cross the rcadv/ay on a green or "Go" signal, and in all other 
cases pedestrians shall yield the right of way to vehicles lawfully 
proceeding directly ahead on a green or "Go" signal*'" 

e-ioi90 x.-'-'^^<i^ 

rr. >% p. I fi.T 

09..UC-G8 d89iiJ lo aoi^-sfiiffijsx* (Wit nl fJits ,e«BO aiili? lo Isaiavsi 

.;co &.i; •3-Cviiyo Ailieqciq ecf itsia x®^'^ ''"''*' "-'"- r^- 'u.- ^u^u^^- 

:,).IIol, «S 9 IS 

xi, .-oiriO lo Xjtt^ si^' iv :<on,aflI£>ic n.tsJiso £ 

risixfv c. .' Tcol 9i)oO o.ili«^T fiiioliaU eiii lo :?(cf)!2e 

bne §nl3is;ti9v . ;oMav a lo 10 (d)* 

avi-if) ;ton If . '" '" " '■■■: r5iy.i.i«v •T:0ri;ronj^ .„,i!ib*!3q 

:sncl;Ji&flcr) . 01 odi Ic sbia olsl 9il;t oJ 

jesl COI nlASiv , . ust ic »tbuf)£lv ^Q^httd 

" ' #5ini38Gao ©fia'SL ^'SC-i: r iJcn>i:T.;.'til ■yjn» gnla-tsv:— * "■ lo 

lo ex n; 190 a 

la^follot 3 8 ,aG'ixnil '''■* 

.aaciw. ~ . -. .-j^^qQ jg cxti^>jv. .hsiB. •<i--' ' ' ' ".':)• 

lo Ycf fcellO'f^no.o ai : toent^iat tA 

^CIIal1r.aX f^alolrfav o? Jrl.t;^lt ;o 

"(5) You are instructed that at the time of the accident 
in question there was in fuj.1 force and effect a certain statute 
of the State of Illinois, known as Section 49 of the Uniform Act 
Kegulating Traffic on the Highway, which was in words and figures 
as follows: 

'No person shall drive a vehicle of the first division 
as descrilDed in Article I of this Act, upon any public highway 
in this State at a speed greater than is reasonable and proper 
having regard to the traffic and the use of the way or so as to 
endanger the life or limb or injure the property of any person* 
If the rate of speed of any motor vehicle of said first division, 
operated upon any public highway in this State v;here the same 
passes through the business district of any city, village or 
incox^porated town exceed twenty (20) miles an hour, or if the 
rate of speed of any such motor vehicle operated on any public 
highway in this State where the same passes through the residence 
district of any city, village or incorporated town exceeds twenty- 
five (25) miles an hour, or if the rate of speed of any such 
motor vehicle operated on any -public hlghv/ay in this State in a 
suburban district, exceeds thirty-five (35) miles an hour, such 
rates of speed shall be orlma facie evidence that the person 
operating such motor vehicle is rvmning at a rate of speed greater 
than is reasonable and proper having regard to the traffic and 
use of the v;ay or so as to endanger the life or limb or injiore 
the property of any person. • " 

"(6) You are instructed that at the time of the accident 
in question, there was in full force and effect a certain 
ordinance of the City of Chicago, known as Section 55 of the 
Uniform Traffic Code for the City of Chicago, which was in wordfl 
and figures as follows: 

•It shall be unlawful to operate any motor vehicle 
upon any street or public way of this city et a speed greater 
than is reasonable and proper, having regard to the traffic and 
the use of the way or so as to endanger the life or limb or 
injure the property of any person. If the rate of s^eed of any 
motor vehicle operated upon any public street or hlghvay in this 
city where the same passes through a Business District exceeds 
20 miles &n hour, or if the rate of speed of any motor vehicle 
operated on any public street or highway in the city inhere the 
same passes through a Hesldential District exceeds 25 miles an 
hour, or if the rate of speed of any such motor vehicle operated 
on any public street or highway in this city in a Sparsely 
Settled^ District exceeds 35 miles an hour, such rates of speed 
shall be prima facie evidence that the person operatlmj, such 
motor vehicle is running at a rate of speed greater than is 
reasonable and oroper, having regard to the traffic and use of 
the way or so as to endanger the life or limb or injure the 
property of any person* • " 

"(7) You are instructed that at the time of the accident 
In question there was in full force and effect a certain Statute 
of the State of Illinois, known as Section 58(b) 2 of the 
Uniform Act Regulating Traffic on the Highways, which was in 
words and figures ae follows: 

'No vehicle shall, in overtaking and passing another 
vehicle or at any other time, be driven to the left side of the 
roadway under the following conditlone: 

■XQ BtlZ S. 

>i to »xc (32) 

1 1,,-UliJ 


jnaoiooQ arfd' 'to dfliitf 9ii* d" i *.«rf^ JC)®*oi/'X^5i 


nl S.SW floiriw ^: 



»JilAi HiJi'iOV 

*When approaching within 100 feet of any bridge, 
viaduct, or tunnel or v/hen aporoaching vfithin 100 feet of or 
traversing ^ny intersection or railroad grade crossing* •" 

The giving of instructions solely in the language of 
a statute or ordinance as was attempted here amounts merely 
to the statement of an abstract legal proposition, and this court 
has frowned upon the giving of such instruotions* 

In Burke v. Zvick. 299 Ill« App. 558, the court said: 

"The instruction is an abstract legal proposition. The 
practice of giving such has been repeatedly disapproved by 
the courts of this State because of the tendency of such charge, 
not made applicable to the evidence, to mislead the Jury; 
Mayer v. Springer. 192 111. 270; Smith v. Illinois Power Co., 
279 111. Apr), 505. As said in Mayer v. SDrin^/:er« sunra ; 
•it is the duty of the court to give to the jury, in its 
instructions, rules of law which are applicable to the evidence 
in the case, and to make the application so that the Jury may 
understand the relation of the rules to the evidence*'" 

And at page 562 of the opinion the court said: 

"Plaintiff's ^-iven instruction Wo. 8 was a copy of a part 
of a statutory section of the Motor Vehicles Act, and was as 
follows: 'You are Instructed that the statutes of this State 
provide as follows: "i^ivery driver of a vehicle shall exercise 
due care to avoid colliding; with any pedestrian uoon any roadway, 
and shall give warning Dy sounding e horn when necessary, and 
shall exercise proper precaution upon observing any child or any 
confused or inca aoitated person upon sny roadway."' This is an 
abstract legsl prooosition, not by its terras made applicable to 
the facts, and as such Is liable to confuse the Jury; 'Williams 
V. Stearns, sunra : City of Chica-g :; v. Sutton. 136 111. Aop. 221. 
We thinic it should have been refused." 

And it further appears from the authorities that instructions in / 

the language of the speed statutes have been criticized frequently 

as tending to mislead a Jury. Scally v. Flannery. 292 111* App. 349; 

Barnhart v. (Join. 266 111. App. 591; Stamas v. Waskow. 250 111. App, 564; 

Harris v. Pifccaly Viggly btores . Inc .. 236 111. App. 392; Stsnefield v, 

V. Wood. 221 111. App. 586. And it was suggested that the language of 

these various instructions tended to mislead the Jury. The speed 

statutes and the ordinances use the term " prima facie. " and the 

giving of such instructions with these words has been criticized by 

the Supreme Court* 

* T 

QomatiVii prfj -^.i §_ 

HB 111 


'-i_f«(P (BA 

-.1 .ri» 

3d; J 8 f>flA 

•0 nclio9a x'^otuie 
■ ' : r ricl as 

: i£ .£2^2 ; „„ .. .- :^ .V 

iQ^Z .aoA ^in ' .ismmM ^^ XL£a2£ -X'^t. a i>aeIaM o* ^tilbnei %& 

;l>a'S.Q:^^..- -•' ^ -■' I ^^tg;*^ ;XGQ .gqii. .1X1 3dS . aiot) .v^3Brin3se 

.V pi s;'i:,.y.j^ ;.:fco .qq.. .HI dSS , ,0^ t^a^fill YXy^X>/ vX:^-^^<; .V ai-ioaK 

- -S.-nirgn^I -3xi;r ;tGrf:f Sa^aaj^sifs aav J 2 6nA ,886 ,qqA .XXI X52 .|?ooV; ,t 

sxiJ Mit •= ,MrLal jaMisa" sitet t>ri3- say 8eo«iB«i^io sricf fin* B&tutMtn 

In People v. McOiirrle. 337 111. 290, the court In its 

opinion said: 

"This court has repeatedly condemned the practice of giving 
instructions containing the words l^^lj^ f^oley as an abstract 
term. ( People v. bikes . 328 111, 64; Grash v. Ajom, 525 M- 474, 
John«£vn TT p^ U- 255; People v, Tate, 316 id- 52- 

So that when we come to consider these instructions 
tha-o we have copied in this opinion they are subject to the opinions 
that we have quoted, and of course such instructions state abstract / 
legal propositions, and the jury are not advised of the atjpllcation/ 
of the instructions to the evidence, ?nd for the reasons that we 
have stated we believe that the court did not err in denying the 
giving of chese instructions for the plaintiff. 

As to the other instructions, we have examined them 
carefully and are of the opinion that the Instructions as they 
appear in this record were Justified by the facts as they appeared 

in the case* 

There are certain other questions that hcve been 
raised upon the evidence as it was presented to the jury, but 
we are of the opinion that the evidence so permitted to go to 
the jury was Justified by the facts as well as the aoplioatlon 
of the law th;?t controls, and we adhere to what was said in our 
opinion on this question. 

Having considered the questions that were before us, 

we are of the opinion th,?t the court's judgment was a proper one. 

The Judgment is therefore affirmed. 



9il nt fti. 

'.■.e.tjfsu'xffaiii ar' 

:^iio./.irQAi-25:^iii ai£5Lai ic e^ivi^ 

uxiTxao au- 

«■;.>,• .-^ M-..- tV J ■.>-i<'»V<' 

■^ ejo J nit 911 uji «iij 

.:-^l'JslUw= ^..i tXiLll)i,[k ».t«'l ,itxayfi 

.,^<^ } 

APPEAL F!l©ll 


umnL ws:tm u^'^fm. mo^fKn comu^ady, ) 

^' !}«fenAaiita - Apptlle^e. ) ^ 1 

This Is aa spoeal froa & Judgment entered Jaairarf 16, 
1941, on the Terdlot of the Jury, nnd froa the order of the court 
oTerrullng and denying nlaintlff^s aotlons for Judgment notwith- 
•tsndlng the verdiat and for a new trial. 

The facts appearing in plaintiff's atcitement sire that 
plaintiff, a Berried woaan, was orossing Central Avenue, from the 
southeast eomer, at the intereeetion of DlTersey Boulev; rd and 
Oaatral Avenua on the aouth cross valk of DlTereey Boulevard; that 
while crossing, she was struck bf an eutomobile driven by def«?ndant 
Saauel Meyer, a saleaaah and eaployee of defendant, 7he Hoover 
OoapaAy; that defendant i^^fr waa engaged at the tifns in bringing 
Hoover va«uun cleaning naohinee to a lady with whoa he had aade an 
appointment, for the purpose of aelling the sane; th&t there were 
"stop^ and "go" lights flashing "red" and ••green"; that the plaintiff 
had the "green" light, started to cross, and while she waa crossing, 
the lights turned yellow" and "red"; that defendant Meyer drove 
through the lights, running down the olaintiff, who waa at the orosa- 
walk, and stopoing his oar in the aiddle of Diveraey Boulevard. Hxe 
ear waa facing northwest when it cane to a stop. Plaintiff suffered 
a broken clavicle and had uterua trouble as a reanlt of the accident. 
It waa further ahown thf;t the defendant. The Hoover Conpany had tsJten 
out ■'Workmen's Coan^enaation Insurance and liability Insurance on its 


ban &i .voX0o'^ ^•sti%¥.t. l*««st»*n/ atiUwoa 

:r:^jit ;&7 vr-luc'-i Tja.fjteviC %c ^/-7<v i-j'.o'td ii$£<»« «i!t* nc •uttikVA X«<xt««9 

i»A,&t Sail '<n^.- CQ,' -:»7'3-- 



•Al«a««n, inoluding defen^&nt M9y«r; th&t the ooaoainy proTici«dl 
deaoAttrstlon tablet at Tarious stores in Chleago under an arrangement 
vith the stores where the eontraets were sade, lists of eontaete 
given, and defendant Meyer vas on his way to sell Hoover naohines 
in furthersnee of the bueiness of the defendant* The Hoover Oospai^, 
to & prospect obtained frea one of these stores at the tiae of the 
accident. ' laintiff contends th&t the autoaobile vas driven £it a 
high rate of speed, that no warning of the approaeb of the vehicle 
was given \»j sounding the horn or otherwise, and that the speed of 
the autoaobile ^as net slackened on the ap:^roaeh to the highway and 
V^t defendant vantonly drove his esr aorosf^ the eresevalk, without 
regard to the oassengere of the street o&r bus of which plaintiff had 
been one; and th; t all of said actions were in violation of the Statutes 
of Illinois, and the ordinanoes of the City of Chicago* 

^0 olaintiff*s stateaent of facte, the defendants add that 
in the 9»rly afternoon of Deceaber 6, 1938, plaintiff boarded a north- 
bound Central Avenue street c^r feeder bus to go to Diversey Avenue 
wliere she intended transferring to an eastbound bus on the latter 
street in order to go to Lagan Square, After riding north, the bus 
arrived at Oivereey, stopping st the southeast comer with the front 
•ad of the bue aoproxiaately even with the east and west eross«>valk. 
There was an eastbound bus at the s^outhwest comer. Plaintiff alighted 
frea the bus; she wae not the first one off* She went around the front 
comer of the bus to cross Central avenue in order to take the eastbound 
bus. The defendant Mey^r, who had been driving his autoaobile north 
on Central and who, when he apnroaehed the intersection at Ulversey, 
had stopped behind two other eurs because the lights had turned red, 
started forward when the li^^ts turned green and the other cars had gone 
ahead. He had be^^n waiting behind the two cars ooesibly half a minute 
or a ainute before the lights? changed to green. He traveled froa the 
point at which he had stopped to the front of the bus • & distanee of 


.aj %'%*%m iaiai^m'i^b ^ttlkuXi^mi ,jf«M»i«t 

4>i^'-- '>t 03 cr# aiKj "ictl»ii9t i&a <r.ftfrt^« *fMWM l«i^i«»0 AjowMf 

3r , 'tn-:*": .-aiifejht ri»tft/fe. ,»«5fliipi- ii«3«J o* ©s, et i »£«<}. nl ^ !•««#« 

Sam: f*C3 bim^ri& ^ss:m! %d^. ,tl0.,eaft tgiit »ilt Joft.a^*.''/ »iEi» {«»tf- ^3&» mtfil 

waep .-... " t9«Wo ©f^' -'■■- ns9«» &i|«m^ jitfjl^ • ^ --■ nadv M«<nol i»&t«»«t 
'■'■'■'^ ' '-:^'-'^-"' — ^......,. . ..... ^ajinjQUi© »^4!|-<i tit* n9l#< mNiiuUb •,:!«© 


fifteen or tigfeiteen f9«t« hen he e^ne abreast of the btts »t the 
eouthe&st eomer, he eev the pl&lntiff ooalng obliquely a.eros& the 
etreet. 3he wae not exactly ?ninning but walking at a very fast walk. 
'>he vae looking north vlth her head dovn. When he flret eav her he 
vaa alBoet upon her. He vae abreast of the btte and sbout four feet 
vest of it. 3he vae about two feet west of the bus and eix f«et 
north of the front of his oar. ^e fpss in the oros8-«alk whleh w«s 
about seren or eight feet south of the Jlveraey eurb lin#« but she 
left it and vae going in a northwesterly dlraotion. Befendant was 
going about ten ailes an hour. He imoiedlately swerved his e&r toward 
the center of the street to avoid eoving In contact with her* He had 
no tiae to apply his brakes as his object wae to avoid cooing in 
contact with her, hen his front idicels crossed into the southbound 
lane he had to slow up because of oncoming traffic froa the north. 
At that aoaent he heard sl thunp and he ianediately applied his br^se 
and stepped. He had gone about ten feet when he heard the thunp* 
which was caused by plaintiff coning in contact with defendant ^eycr*8 
car at the right front fender and doors which caused her to fall, it 
was not the front end of the car, not the front busper with whloh 
she caae in contact. The car stopped at a slight angle to the northwest 
and between the cross-walk and the Dlversey center line, the oXaintiff 
wae in the etreet between four and eight feet south and to the east 
•f the car, 1. e., the right rear of the Car. iShe was about eight 
feet fro^ the eaet curb on Central avenue. 

The witness Lapp, a supervisor for the street ear eoapany, 
stationed at the eouthweet comer of the intersection of Diversey and 
Ocntral Avenue, was standing fsoiag east at the time of the accident. 
He was the only witness to the acoident besides the defendant f*.©yer. 
He saw olaintlff cone around the front of the bus and stert to cross 
over in a hurry. He saw that she was stepping into traffic, the 


Tt^s^itt J^eH «few «ifli ,f«ft<ii4> 

aoirt^ Jtxv '^^v^A^a i-aovt '•-■•■^-. ,..,,o «i^ la.|ia»'*a©«t «»-nA . 


traff ie lights being gre^n for north and south tr&fflo, and tli« east 
ftBd west traffic on tJiTers^j not aoTing, He took « st»p forward 
and hell«r«d "^atah out**. Plaintiff eTidantly did not hear hi« 
baaause she kept on going aoress tha straet looking wast toward tha 
vaiting asstboiuid bus. ^ha kapt looking forward, and har aoYeaent 
was eontinnoua froa tha first tiaa ha daw har (coming s;round tha 
front ot tha has) Mp aatil the tine of tha aooidant, Har line of 
•oTeaent in referenda to tha e.^ stbound bus was slightly to the north. 
tk» point of aantaat was on the north half of the south oroee-valk 
on ^iTeraay, and Juit ae aha had pasead the standing bus. This 
witnese testified th^t ae the northbound bus ease up to the oornar* 
tha lights on Central aluiagad froa red to green; th^t the light 
changed froa red to graen before the t)l«intiff orosead in front of 
the bus - the lights were changing as she st»rted aeross. 

After the aaoident, the olaintiff was taken to a hospital 
b7 defendant Meyer in hie oar, where ha raoorted to tha police offioere 
who case to the hoaoital. They tested his brakes, said they ware 
all right and told him to go on his way. Me secured the naaes of 
two witnesses * oblaaki and Oabal, who ao-^eared and testified. 

There is a aonfliot es to which traffic had the lights in 
its fsTor at the tiae of the aaoident, plaintiff claiaing that they 
were green for east and weet traffic, but it would appear that tha 
prapandaraaaa was rlMlfear with the defendant. Defendants suggest 
that there were only twa witnasees to tha satual oocurrenoe, Lapp 
and tha defendant "teyer, and th^t both testified that the lights ware 
green for north and south traffic at the tine of tha accident. Tha 
plaintiff teetifiad that she looked west toward tha traffic lighta 
on the southwest comer before she started across and th&t thay 
were green • that the tiae when she was struck wae Juat about whan 
they were turning* She also testified that she looked north as ska 
walked weet, and that she did not see defendant's car before she 
caae in contact with it* 

,-, «fjf.«.^ -^fi^gljr $|'1t1»n 

'. ;'J; i tJSi/ii? tS^i .t '■ :•■ >! i J v; , 

f^H-Jl tji»iv 

r^f^? i'*i'-;?r: 

«i 3^^' 


.<{,s^ all? n- - xr? ">l<" 


Sohelli, a vitsste for th« plelntiff, was the driTer of 
th« bus* Re stated that the light was red for north and south 
traffic vhen he stopped his bus; th£>t eoae pftople got off and soae 
OB, and that betveen then and the tiae of the /scoident the light 
■li^t haTe ehanged, bat thst he did not see the aoeident. He Just 

saw her walk to the west around the oomer of the bus. The bus was 
about ten feet wide and was about a foot frea the east ourb* 

The witnesses ^'oblaokl and Cabel were riding east on 
Oiversej in a oer driven by aabel. neither one saw the aocident. 
Poblaeki testified that, ae they approaehed the intersection frois 
the west, the light was green for thea; that, when they were fifteen 
or twenty feet froa it, the light ehaaged froa green through aaber, 
to red« At the tiae it changed, they were going 25 ailee an hour, 
and stopped before reaehing the intersection. They then saw 
defendant's car stop in the center of the street. GaiE^el testified 
that they were right up tc the intersection when the light turned 
red; that they were just about 15 feet froa the crossing when it 
turned red, going about Pb ailes per hour; that they had the green 
light and when they get within 15 feet of the light he stepped hie 
c&r suddenly when it changed red, stepping it practically abreast 
of the stop light; that the light e turned green for north and south 
traffic and red for eaat and west traffic when he stopped his oi&.r« 
He also testified on oroee-eKanination thst he could not say whether 
the light was green for north and eouth traffic at the tiae of the 
accident. He stated he Juet noticed the oar as it stopped; it 
faced kind of an angle, then he saw the light green behind it. The 
first tiae he saw the nlaintiff, the light was green for north and 
south traffic. 

Plaintiff's first point is that she had e right to interrogate 
the Jury as to their interest, if say, in the defendants* insurance 




, Sam . 

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t J Dft"t' 


I'^utXi ^e^ ?;?>J: 

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i»ir %»4S^ ?a4^ lb9f% 

i'S'^ bsm #f!itk« ««i kvi ba» ftXtXertt 

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•dfiunttraai *w$fi^^':,i: 

4. .i ii^j.4 

•^-* ■-" .-s* t*uirt «-'? 


oarrlcr. Th« r««ord ditelosea that defendant, 7hft HooTtr OomoAaf, 

had tvo Insurance OAPrlars on the non^ovnersMp atttootoblle publlo 

liability inattraBee« and one in 'workman's eos^ene^^ti^n and 

oeettt>&tional disease. All the insuranoe eompaniee had offioec in 

the City of Chiaage and it ia contended th&t eounsel for plaintiff 

ahould have been allowed to interregete the Jury on th« voir dire. 

eoneeming their interest, if any. The oourt after the verdiot 

called all the Jurors up and asked thea the question collectively. 

There had been filed in the record, an affida^vit, eimil&r to the one 

described in s«i there ▼. Henriouet. ?68 111. 588, upon which case 

the claintiff relies as an authority for the oropoeition that the 

oourt erred in denying her the right to Interrogate the Jurors on 

v(;>^y dirf as to their interest, if any, in the insurance comT}aniee» 

In the v«ithere case the ^upreae ^ourt in part s&idj 

"The proposed inquiry was disclosed to the oourt aXkd 
oprosing counsel in ohaabers and fully disousi^ed before any 
attempt was aade to interrogate the Jurors. The record does not 
show the eaploynent of any subterfuge to infoni the Jury that an 
insurance ooaoany vas defending the suit, or any other iaii>roper 
■otiTC or aieconduct on the part of plaintiff's eounsel. Troa 
the record it aonears the inquiry vas for the purpose of exer- 
cising the z*ight of challenge*" 

The practice of so interrogMtlng the Jury was again approved by 

this court in yya^ui ▼• Hal^laSs ^» 111. App. 498; ^f^, -^Q^*?? ▼• 

Antfln^;i9> SOO lU. App, eoa; and Q*«eal v. C^ffyraUftj 503 111. 

App. 574. Likewise, in Kavanaugh ▼. ?arrett. 310 111. App. 42©^ 

the court held th^it the iiaithers ease was decisive of the nuestioB 

and th/,t it was not error to allow the questions to be propounded 

to the Jurors. In the instant oace, however, the Jurors were 

questioned following the verdiot ae to their interest, if any, in 

defendants* insurance carriers, and so far as the record discloses 

their answers were in the negative. Therefore, it would apoear 

that no prejudice to plaintiff* e rights arose by reason of tho 

interest of any Juror sworn to try the is(?ues. As was said in 



• ■ 

mat t<^lXiggi ; 

\J1'^- BlitS 

■ Dili n- ''■■ •••■V 


,a-^id«citi08 «ull^it|-' 

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i &»cri*t09«ll 





* * * ^ The rullBg on a 5aotlon for leave to ex&»ln« 
▼•nimea as to their connect ions vith &n insurance oom->any where 
the defendant ie covered by insurance, rest a I&rgely in the 
dieoretlon of the trial court. * « *• 

See also the dee i si on of the S«pr«ie ^ourt In the eeee of KATanAmA 

'»• ^^arrett. 379 111, 275, vhieh rests on a like holding* 

The plaintiff further contends that there wac sufficient 

eYidenee in the record to sustsin a finding of reckless, vilful and 

vanton eonduet or gross negli^.enee an the pert of defendant Mey^ir-rs, 

and contends that the court erred in vithdravlng fron the Jury the 

question of vilful and vanton conduct; that irhere there is sny 

evidence in the record fairly tending to support the allegation, it 

becoaes a question of fact for the Jury, and that a notion to 

withdrav the wanton count auet be cont^idered in its sost favox^ble 

aspeet to the party against whofterer the action is directed, 

Defendants contend uoon the facts at>oearing in the record that it is 

clearly apparent that there is nothing in the record upon vhich to 

base a charge of wilful and vant(») aieoonduct; th&t there was no 

evidence of intentional injury and no evidence showing "such absence 

of care for the person of another ee exhibits a conscious inuiffer<- 

enoe to oonseouencet"; and that in suoh a onta a court is under a 

duty to direct a verdict for a defendant as to such ch£«rge, la 

Qreene v, Hoonan. 372 111, 286, which was a daath ease in which the 

trial court allowed a wilful aa4l vanton oount to go to the Jury '/«'here 

there was no evidence to support it, the ^^upreae ^ourt, in reversing 

and reaandlng the ceuse, said; 

" * « « A defendant la a ease of this character, facing a 
charge of wilful and anton conduct, ic r)laoed at a serious dls« 
advantage as coapared with one ch^sirged aerely with negligence, and 
where there is no evidence to sunoort suoh charge, it is the court's 
duty, on notion, to withdraw such charge froa the Jury, and failure 
so to do is, by reason of the ohErsoter of the charge, error requiring 
reversal of the Judgaent, for no one nay know what influence the 
charge, though not proved, aay have had upon the Jury, particularly 
since it has not been inforaed thst it was not to be Considered by 
it. The distinction in law between wilful and wanton conduct and 
acre negligenae ie not a natter with which the average Juror Is 
faaillar. * ♦ •• 


il'.' ii' .-li i;i3 » OC'S: 'l^tW CSi.;.: 

vM.r - A3 \it 



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'9099 i'^ 



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It is also eugg<$8t€d, and la the rul«, tJX£t m finding of ^rllfulness 

and wantonn«ti vlll b« ett stide If saeh a finding le agalnet the 

aanlfest velght of th« eTldanoe. ( Clark ▼. Haasaloulat. S04 111, 

App, 41). Plaintiff argttoa, hovorer, that tho eTldenoe introduced by 

liar wae aufflolant to t&ka th« oaee to the Jury on the queetlon of 

vilfulneas and wantonness, and llata aa aueh eTldenee eleven Iteaa 

whleh she tema "salient facta ahovlng vllful and reokleaa oonduot*. 

But, upon exaalnatlonf they do not appear to have been aafflolent 

to warrant the eubalaslon to the Jury of the vllful oount, The 

third Itea to which attention ie called la th^^t aefendant^a oar vaa 

drlTea at a high rate of ap«#d. There la nothing In the record, 

hoverer, to aupport the contention. The teatlmony on the eubject oon- 

tradl«>a thla atateaent. The defendant Heyer, the only vltneaa to 

teatlfy aa to apeed, atated that he vaa going about ten allea an hour. 

According to the teatlnony of plaintiff* a witness, after the oar 

atopped, the plaintiff %raa lying In the atreet only four or five feet 

back of the ear. Aa suggssted. It seema obvious that If defendant 

Heyer had been travelling at a "high rate of apeed*, the dlatanoe 

between hla ear and the plaintiff after the accident would have been 

greater than this dlatanoe. This court. In Clark v. H&aseloulat^ 304 

111. App. 41, said; 

* * * * ^.xoeaelve aoeed aay or aay not be evldenee of wilful 
and vanton alsconduot. The deteralnlng factor la the clrcuaataneea 
aurroundlng euch exeeaalve apeed and the c^u^atlon la aa atated In 
?^treeter v. JHuarlchDuae. aupr^. whether under the clrouaataaoea aa 
they appear In thla record did the apeed at which appellant vaa driving 
ahow an entire abaenoe of c&re for the aafety of appellee and aueh aa 
exhibited a conscious Indifference to conseouenoeaf « * «,« 

Llkewlae, plaintiff's salient facts that (1) defendant's car weat 

through "green" light, and (2) defendant* e car went threuf^ light aa 

'greea* to "yellow* changed, (which atateaenta preauaably are intended 

to aeaa that the llghta were agalnet the defendant Meyer and that he 

either drove through the llghta or irtille they were in the proceas of 



1c acltan 

astr Ti8© ?.*sr.-> 

-Sr^ , %• ji" 

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■ n-'?in<*l 


^nr^iX^^A" tin!*} •£!« ifeljfv 


.;-nj fM'vv: .:n^;ii..5B t*ttiffli«Ia ,€alir«jUJ 

'■i' i^irc'ti ■> •■; ■' :«« ,tifaii *«»»T!a* ilsivrsAr 

dfiit^inl »n4 y" wM'M-».»i.J» ^i-a^oariD "voXX»f* ot *«a«i3" 

yrcev Yo4f afiJF^ ' ' 9di Hi^tjinAS wrvtA *tMUri« 


otuiBging} do not appear eofflelant for a finding of wilful and vanton 
■ifoondvet. Plaintiff's other salient f&ete are (4) dafandant*e esr 
vaaTad and vobblad at it oaae to a stop in the niddle of ^ireraey, 
(5) defendant's oar did not stop until it reaehed the aiddle of 
i^iTersey >JouleT?>rd, although oleintiff wae atruok in ox^e@->walk, (8) 
defendant, ' abuaI Meyer, hiaaelf said he eould stop hie ear within 
four feet and eaw plaintiff eight feet avay but did not stop, and (9) 
although he seid he oouli step his e&r within 3 or 4 feet, he traveled 
all the way to tbe middle of Diversey before he oane to r stop. It 
does not appear froa these atateaents that defendant Meyer* « oonduet 
was wilful and wanton, nor do they ehow a oonseiaus disregard for the 
safety of others. As suggested, when a pedestrian suddenly hurries 
into traffic and runs into the side of the driver's 9mr, any car 
%rould "weawe and wobble" during the naturally startled driver's swerve 
to avoid the oedestrian. hen we oonslder all the feots and the iteae 
oalled to our attention by plaintiff, we do not find sufficient 
evidence to hold the defendant Mtyer guilty of wilful and wanton ale- 
eondttot, and are of the opinion that the trial oourt properly withdre»< 
froa the Jury the oharge of wilfulness and vantonnees. 

A further nuestion is urged, naaely, that the oourt erred 
in giving and refusing to give certain instructions. lir>on exaaination, 
it appears that neither the given nor refused instructiona, to whioh^ 
plaintiff objects, are set out in plaintiff's brief; consequently, 
the court, without the task of exaaining the abstract or record, does 
not know what they contain and eonaeouently cannot determine their y 
apT>li«ability or laek of applicability, ( Cory v. v.oodaan Aooident Co . 
263 111. Arp. 20j asileviteky v. Jitv of Chicago. 280 111. App. 531; 
lonfr V. lyjUuA'a, 267 111. App. 357^ itBfiJL ▼• ^tlXVaftlt* 309 111. 
App. 233). 

It is urged by defendants that it does not appear that any 
objection to the court's refusal to give plaintiff's refused instruo- 



.Vvll'.i. ..". I.' 

''^affid ,7»t«^ £9umH ,^a«*att«A 

- ""• " '^ -^:»a Ana f«el •urol 

I' ei6): «d;to/ vv^ MtiT XIa 
o?ai diun bos »I il^i^ ojtfli 


J'oiij^^-XK:: H*'!-}^^' SanbaDte 

•ivtswe s'-x^viio i/dX^iA^TB liXe-nwy*^ 6»42^' ^l-tijb '•Idcfpw ,&ajs •V.»»v'' ibXiiev 

-<?X»it1;«» fcnll feu - ,tl:JJfliaX<5 x^ J»oWn«J*« •xoo cl 64XX«e 

'«i>is aoin«v ba& X&tXix le ^^^^iif?^ nt9x«>fl tHAbMtt^ cufjf Hied e^ •9ii«B4ii« 

,ti^fi«^^^»o» ~sl«Xnci ^*%lltal ftm $m» *%* ^atmlfic Itt^^lf^q 

:^? efij[ie«i«»3»& ?ona6« icX^fl»&o««tii«>o l>xi» nXistaoo xmAt J-ulv vcfi^ Ion 

.Qw yi^f &Xo»» gftg&fi^w ,T woO ) «i£«lIi<;fi)9XX<;qA Ic iftaX no ^tiLCcfAOlXoq* 

5X&C . , OSS ,ffliWP|tf-> ^<) 1!?^ .V TCitatlyglHiAW ,oS . . :i I^S 

.XXI eoe ,tffttfi^llf;il .V jisflsit t? , v^S ,9*iUfiiiiK .ir afiOfl^ 


tiona vag auidc by plaintiff befo^ tha Jury's retlr^mant. Section 
67 of th« Praotlo* Act (111. HeT. St. 1939, Ch, 110, Par. 191), 
dealing with th« instructing of Juries, mak«8 no refaranee to the 
tiac of oMJULng of objeetionc to the court's action glTing or refusing 
of inttruotione. Under these eircuastsncee, it is urged, the eoamon 
lav prevails, and objections to the instructions haTe to be taken at 
the trial before the Jury's retirement; and that the faot that section 
60 of the I'ractice Act (111. nev. St. 1939, Ch» 110, Par. £04} abolishes 
ths necessity of foraal exoepti^ne does not dispense vith the necessity 
of aaking sous objections to the court's action if it feels it is wrong. 
HoveTsr, the cueetion before the court has been passed upon by this 
court in the ease of Hailly lar A Cheaieal Corp .. ▼. Lewis. 312 111, 
App. 664, where the ooinion of the Buoreme ^ourt in the eese entitled 
Deoartaient of ublie ^oAs and iJuildinge ▼. B^^tpfi, 371 111. 11, was 
cited. Under the doctrine of th^t case it is unnecessary at the 
present ti«e to object or except to the giving or refusal of instructions 
before t;:e jury retired to consider their verdict, a litig&nt may X/ 
object to giving or Refusal of instructions in his notion for new trial^x 
which WAS done in the instant case. 

Ac before eta ted, the fact is th^^^t plaintiff did not inoor-> 
porate in her brief the instructions therein coaplained of, with the 
result that defendants were deprived of an opportunity to answer the 
questions and theories raised as to the aoolicability and propriety 
of the coaplained of instructions. l;>efendaats do, however, seek to 
anticipate in their brief soae of the natters regarding these complained 
of instructions which night be called to our attention in olaintiff's 
reply brief. However, the instructions coaplained of arc not recited 
in the language of the instructions by defendante, which fact will 
prevent this court froa considering the instructions as presented to 
the trial court. 

iV /. 

. --•*-•••-'" '^* -nnM** to ««i^ 

'*;;■ aiici;?wS-.v^ i-«iM'f«;>t-iO t*i-*£i»d»iX .«d^ 
p'Tu^o ^si$ &f »nCili9&l4o #«<»« jjiitliiUM to 

•:s® j«a* %c i^aif^ftoi* ©lief 'WiljatI .fe^^i^ 
,lfti^t «f4Mi left ^l;^<^ «lii ai mncryttn^vtaal te Xfl«i/t«% ?o ^ni7i^ &t iKilet^ 

XXXv f^-.'t itoiitw ^ajfai '^Mi^^sfli ftiif to ^^amnttunl ^At rA 


^h* plaintiff oontcndt that the court erred in recuiring 
eountcl to adait be vai irreng and advlelng the i\xrf thst the insuranoe 
eoatrr^any carriers of the defendants were not peouired to keep and 
■aintain their reoorda iiere in this etate« and atates that during the 
trial oounsel for plaintiff had subpoenaed the boolta, records and 
other docments of the insurance oarriers, for the purpose of eonbatting 
the defense of independent oontr^etor raited by the defendant, The 
HooTer Coapany, vho oontended that defendant i^%f»T was not an employee, 
but an independent oontraotor. It apoears, however, th^-it the record 
is silent as to any such ruling of the court ur^on any such questidn. 
The only thing in the record having even r> remote oonneotion with 
the r>oint is a nueetion asked by olaintiff'e attorney of the branch 
aanager of defendant Hoover Coaoany* upon whom a subpoena had been 
served. The witness had stated thst certain insurance oolieies asked 
for by the subpoena were not available as they were In the Home Office 
of the Hoover Company, which is a foreign coroorrtion. the witness 
was tiien asked, "Are you familiar with the reruireaents of the statute 
that you are reouired to keep your records in this state eonoerning 
business done in this stateT* He answered that he was not. Defendants 
point out that thie Is all thnt there is in the record. It is Wft s 
ruling of the court, nor ie there anything to show that the court 
reouired plaintiff's attorney to state that he ^^as in error or that 
plaintiff's attorney did so state, And^ with nothing in the record, , 
it ie obvioue that there ie nothing before this court, and the court ■-'' \ 
cannot consider plaintiff* e objection. 

The plaintiff advances two objections to the written statement 
of the witness ^'oblacki introduced by defendants as an impeaching 
exhibit; first, that it should not have been taken by the Jury upon 
its retirement, and, second, thst it was not addaiseible in evidence. 
Defendants* reoly is that these contentions are not properly before this 


&«i^ J!Mc©«*i ,aioo^ ol Xsantfoo X«lf^ 

4^* ?«!<?»« ns ^en nav t<»x«'* tn,aBft«Tre>l> tssil^ &»&ij»;^a©© cits' ,XfSAqttoO *i»vo«lt 
^tossi art;; . fsvffvori , ^taSoHttnoi inoihtt^qmhal nM 9u(S 

,aol^89>jtn> dtJttS \fl» rto'^u :J'sir' :•% Aevt vim c^ 98 Unit* 

ie(&«idn(i <^£i^ to t*fl^c^ v^ nol^att/p « ti talcxr Ml? 

n^«d i&aif Aiis»oqfCf<m s vc^dw ^rfitbnttt»B to t^i^mium 

•#ittQ •ffoH «/i} Hi f»n&^ x^^^ ^ »*l«ir ;a£i«o<i^0« 9d:} x^ lot 

;ri^flj5 »d* #r--ri# «»-*!« p-t .«0»Ht^.?t,.i i^«r«^iij a I ion ,:fitf09 9ii$ to salXin 

Oft as aJii^i'.n©?"^ .-^ 6(?otj»«^7ftl iji© 'ifrttiw. cilif to 

fteqi; rf^'* ^^* X^ rt«lfir «*»» *-n ^?^rellt *1 t»il* ,»«n;it j^/cTlitirs 

t90&9hlv :dliuimhb» ton o^v ^ no9»« ,ftiu ,ifi»«»^i*tflt lai 

aid* «wc*?3c' V I'te ,<3'3c Jen s-ix? a oiJfts;urjc ft'ft.d.t iciril «i ^ff-r'^ **s^rt«^n«loff 


oourt for th« following r««itOBs: (a) there is nothing In the record to 
Indieate that the Jury took the etetwaent to the Jury rooa; (b) that 
If the statement c&n be considered as having been tsXen, no objection 
to ite being taken appears in either the reeord or the abstract; (c) 
neither the written etatenent itself nor its substance is set forth 
in l6intiff»8 abstract, and thst it is not the duty of the reviewing 
court to search through the record in order to pass upon an alleged 
error (citing People ▼. Hunaaker. 306 111. Add. 476), and that a court 
will not search the transcript of record for the purpose of finding 
a cause for reversal (citing ^aurr>hy ▼. richler. 305 111. A|>p, 8; 
and Q'Meara ▼. C. M. 4 St. P, ft P. Hailroad. 367 111. S£); and (d) 
that the vritten statcaeat of the witness was in fact admissible, 
that it contained nothing but facts, that it did not contain n&tters 
of opinion blended with facts, and thet even if it had contained both, 
under plaintiff* s own authorities, no reversible error was committed, 
as she did not object to the part that was opinion and asked no 
instruction that the consideration of the Jury be limited to the part 
thfit was fact. Therefore, as stated by defendants, if olalntiff does 
not put the statement or its substance in the abstract and if the 
record does not show that it in fact went to the Jury and that plaintiff 
objected to its going (if it did go), then obviously there is nothing 
before this court. And, the statement appears to have been introduced 
solely for the purpose of impeaching the witness who had testified 
contrary to the signed statement. Under the circumstances, ^^re believe 
the court properly permitted the introduction of the statement in ^\ 

A further point urged is that defendant M^yer was an indepen- 
dent contractor, and thrt, therefore, the Hoover Company was not liable 
for any misconduct on his oart. However, the Jury found the defendant 
Meyer not guilty, which would relieve the Hoover Company of any 
liability, even if Meyer was its agent, because it could only be 

;3««iiJe 'rf^ iffri' tj?*€{tf« t»^1t ^l»ef afl • 

»««cr»j I Mea^n le Jqi^twadt^^ »xt# ii«it^9 ioa 111 - 

., yijuatgy. '4aX*Xt>) Isa^«iron «to'': 

^ ./li Vd^ .. . . .-. -1 ,^-„ «, . _ ' . 

A Mft nolntqr it s%»tx 9^$ oar tootle i^oiv hJtJb Mf« la 

9e , .^as\9b yd &•?«*» «» ,«nctdn»dt .font »«v #<»ilt 

^^Xfi;;9<t ul ^n0sif {Xsc^oXv4o ^«^dt ,(os i>XJ^ tX IX } Siiios «^X ot fr^^o^t^e 


"-%s^r.<^tni HA saw i«5^*.*i ?fijsi!>ji»lt«i& #.eit^ bX .ft«:«B fni-^:;- •Tof^^Ti.-i '■ 

^ofi e«w x<l^<P^^ is-vooH ftfty ,»*iot»i<^il? ,;f'wSUf fees .to^fesT^noo *ff«ft 

Sn^i'a^t^h (Hit Af«e<»t x*^i ^^ ^n^vmteM •I'lao «iii fso tonbrnjo^Xa? tin lot 

7/^5 '^c '^Or.-JT-er- 'tsvso*^ ^fij MVf'XI'.'j rr>ic^' i-^atrtvr ,y tiling *o« t»x«'* 

; ., ,,,,, _. ;, fi! vA .■■*•' f ''XdiXX 


held on th« de«trin« of r««pondest 6UB>«plor . Ther«for«, it Is not 
Aco««9sr]r for this oourt to furt£i«p consider whether or net the 
Aefendftat Meyer wae an independent eoatraetor. 

The plaintiff contends that the trial oourt erred in aastain- 
ing the defendant's objeotions to i3laintiff*s line of cross-exaninstioB 
of the vitness H«nteiaan, vho was ealled ^d testified at the request 
of the defendants. Of course, it is understood and to be reaeiBhered 
that the latitude allowed on eroee-exaaination re^^te very largely in 
the discretion of the trial court* end where there has not heeh a 
clear abuse of the diseretion, the ruling will not be disturbed. It 
appears froa the record that defendants, in their oase, called Hansela&n, 
ah inTestigator, as to the taking of the statesient aiade by the witness 
PoblAOki to show that it vas ia the sane condition as vrh&n it wae 
signed by Poblaehi. Of course, olalntiff, had the right to attempt to 
weaXen and discredit the testimony of this witness, but all thet 
plaintiff was entitled to show was that this witness was vdvking on 
behalf of the defendants, and this is what ws^s shown by the witness* 
testiaony on cross-exaaination. He testified that he interviewed 
Peblaeki on behalf of the defendants. As to the oovoetency of the 
oress*ezajiiaation, this oourt has examined the record and we are of 
the opinion that the court did not err as suggested by plaintiff, and 
that plaintiff** case was not prejudiced. 

The judgment entered on the verdict in this ease will, 
therefore, be affirmed, 


t <^ 


(SO ;gaJLj*«#tf - ■•: ^^^«a*?v a Mr ' -rf .^ hmlilSt^ s«w ltltaJUI< 


by HARRY GERSTEIN, their next friend 


OX B X«ri.» ff"i 



NATHAN M. KANX£.H, ^"'^ 

/' Appellants, 





^nuel N, Levin and Nathan M, Kanter, two of the defendants^ 
appeal from an interlocutory injunction entered on a verified cojh- 
plaint, without notice or bond or any showing that complainants would 
be unduly prejudiced by the giving of notice or why a bond should not 
be required. In accordance with the provisions, respectively, of 
sections 3 and 9 of the Injunction Act (111, R^v* Stat« 1941, eh, 
69 )j and also from an order of the court denying defendants* motion 
to vacate the interlocutory order. 

The subject matter of the complaint involves a partnership 
accounting between the children of Abe Weinstein, one of the partners 
who died in 1938, Samuel N. Levin, the other partner, and Nathan M, 
Kanter, who advanced $6,000 to the partnership at its inception in 
1932 under an agreement by which he was to receive as ccanpensation 
for the use of the money advanced 15 per cent of the gross receipts 
of the partnership, which was engaged in operating a currency ex- 
change. The complaint charges that after Weinstein»s death. Levin, 
in violation of the statute, continued to operate the business under 
an agreement with Weinstein* s widow, which provided for stipulated 
salaries for the new partners and an equal division of the profits, 

and for the ccntinoation in full force and effect of Kanter »s $6,000 

(HI -M buz :; 

MOI?^ . ,;i KAHTAK baB KIT? J .H JS^Uiaa 

, ■: : =0 3000 

- 00 fceltiisv £ aa b9i9iae aotitauiiMt x^oc^i^oQI'r(p;till fia ssoti iBBqqis 
f)Ii!fow 8;?a£niJBlqc:oo ;^adi gnlwofie xcis ^o Snocf io aoiJ-on cfxioxt^lw ,ifi±6l 

j'-'Sff^aisq 0£fc? lo ®ffo ,iiie(^afil®W 9<fA to ae-rfyXl-'lo ftjy neewi^ed i^t&ruioooB 

xfl xroLtqasni: ait :^b qXrictauoi^aq *d;J cKt i300^d$ b»«tavfcx3 oxlw ^leinjB'i 

a^qlsoei aaon^ e>rtt lo tee-© leq (JX Jbeocfivbs "^efioia aricf lo esx; »ii;f lol 

«X9 xs>n9rtrii;o c sali^ieqc nl bftsasrif asv il©!!!!? ^qlrleioa^tiBq eOJ lo 

^xiivsJ ^ricTBsfc a'cisicfenloW ib^Ib tadi sejiaxlo cfrsteXqcoo «ifC .dgnsri: 

isfcniT aaenlejjcf ©rid- 6C^6loqo q& fcftunlcfnoo ^s^ti/^Bj-a 9/l:r lo nol:t»Xoiv nl 

fc©;?£Xxrqi;J-B nol befclvorrq rioJtrfw ^wobiw a*flJtffcf8flX?\Y ricHw ^flSfaseijA aa 

^a^.f-xOTr -r^:? lo noisivib Icxme ns ^fl.'•. S'is/i.+ T:-- r^n r>i{^ toI eoXifiXisa 




It is further alleged that Kanter's loan, with the provi- 
sion that he was to receive 15 per cent of the gross partnership 
receipts, was a usurious transaction, that the smas paid to hiri 
over a period of years were in excess of the legal rate of interest 
permitted under the laws of this state; and plaintiffs seek an 
accounting of all dealings between Kanter and the partnership from 
its inception in 1932, as well as an accounting of all moneys paid 
to the defendants Kanter, Levin and Minnie ^/elnstein; and they asked 
and procured a temporary injunction restraining defendants froa 
collecting or withdrawing any partnership funds, except for actual 
operating expenses, or from using or applying such funds to their 
own use, or transferring or assigning any interest in the partner- 
ship business « 

It clearly appears frcm affidavits presented in support of 
defendants* motion to dissolve, that the injunction was entered 
without notice, and the order provides that "for good cause shown" 
It should "issue without bond," 

The statutory provisions invoked by defendants for rerersal 
of the interlocutory order are: Section 3 of chap, 69 provides 
that "ITo court. Judge or master shall grant an injunction without 
previous notice of the time and place of the application having 
been given to the defendants to be affected thereby, or such of 
them as can conveniently be served, unless it shall appear, fr«a 
the complaint or affidavit accompanying the same, that the rights 
of the plaintiff will be unduly prejudiced if the injunction is 
not issued immediately or without such notice," Section 9 provides 
that "In all other cases [except where an injunction shall issue to 
enjoin a judgment, as provided in section 8], before an injunction 
shall issue, the plaintiff shall give bond in such penalty, and 
upon such condition and with such security as may be required by 
the court, judge or master granting or ordering the injunction: 
Provided, bond need not be required when, for good cause shown, 
the court, judge or master is of opinion that the injunction 

■in oj Jbisq aaiwa sjrfc)' JiA ^nox^^osaoisit^ BifolTJfeu b asw ^^iql&o^'i 
s>iBtii.l ^o sj-iii Xbb&X 5)iid- lo easojcs nl 9-i«w ai^9'^ "io botieq & t»vo 

uoxIl qhUiimi'tmi edi has i&ias2 ixsswd'ed aaniXsei) IXb lo ■gp.iimJootiB 

ir-taq a^ JifiiosoB ns z& IIsw as t^E^X ci noiuqeofli B&t 

bBiis.js x-fi^ i^^£ ial&^Btito\ii exsmtM. baa nXvou ^ isJ-jifiil 6;fflBfcGal9b acW od- 

ae"5l: ^JiiiB^elef) iixixiisi^aoi itoJtd sniff; fii -t^^iioqae^t s fcsmooiq; toa 

oqqjje ni Ls^it^eeiq sJ-i^jsibma moil snssqqs "^tbc^.': 
'eiG^jBd &ZW nolioaviat &dS i&di ^evXossXb o^ nolioa ^BStiBbaeteb 
rmode sessao fcoog lol" ^a<!U eeblvoiq lebio ^di Sm.£ nBstjiion inoditti 

*'.jb£{@d ivoditf} 8U£2i;" WiroxlB ^1 
I.^sisvsi lot 3tH6i)fie'lsl) Tjcf ifi^Iovfii anoleiivoiq ^^o^tifJB^e ©ill 

gGl).tvo'iq ^o ,q£x{o 'lo Z nolJaeS :©'Z£i if>£)io y,io:^iJ0oLi9ta.l edi to 
ifj&d^t^ noUormlal £i& d-asna Xlisrie i»tfeBs "kj ejAut <^iuioo oH" ^ad;t 

^is9qqfi XXaria ^X aas-Xnir ^bevi©8 sc YX^n^Xnevnoo obo a« a»xid^ 

sirrisXi sdcj ,. saaa i-di :^nt:\fl&qsBooois, itwabllla 10 d-ntfiXqmoo &di 

ai: Goi:Jonjitux aiicf IX b€>oltJtloiq xlubciu »d XXiw llX:tflXsXq nH lo 

BSfjivonq ^ noXcJ-aeg ".sox^Jon xlowe ^iaodit^i to %leiBlbojsal bexreeX ;fon 

ou sjuaai: XXfirie noiSoaalnl xifc. ©leri^ ;fqsoxo3 Boeeo ledSo XXa ill" ;f«tW 

aoX:fcm/{^X n& ©lolod ^[8 nold-osB ni feoJblvoiq as ^^Jnsiasfiiot « niotxis 

baa ^x^laaoq dostz al bnod •▼Xj XXeiI« tlicJcXaXq edJ^ ^exresX XXsda 

X(i bQitu^&i ecf ^sffi e& x*Jt"i«09a riox/a £f;tXw fcns notilbaoo dosm aoqsj 

itioXiznsslal srid- sal-ietno t[o ajaX^fisig tr®;t2fiia lo ejjbut ^^iiwo adjf 

^nworlB eauso boog 10I ^neilw bsnlirpao: •cf ;tQa been fcaod ^bsbiToi*! 

xxoXJonutcX e£W tsdS noXnXqo lo al aeiajsai to ejfcx/t ^^ii«>o «ri^ 


ought to be granted without bond," 

The courts of this state have "spoken many times in no 
uncertain voice in condemnation of the practice of granting an 
injunction without notice unless it is made clearly and indisputably 
to appear from facts recited and verified, that the rights of a 
complainant will be unduly prejudiced unless the same be granted 
without notice," and that "No presiunptions are to be indulged in 
favor of action without notice, but parties mUst, on facts stated 
and sworn to, bring themselves within the exception of the statute 
♦** [and] Failing so to do, an injunction granted will be held to 
be improvident and dissolved," Brin v. Craig. 135 Ill» App, 301* 
This interpretation of the statute has been consistently followed 
through a long line of decisions by reviewing courts of this state. 
See Rieder v> V/hite. l60 111. App, 576» Numerous later cases are 
also cited by defendants. 

This rule is not seriously questioned by plaintiffs, but 
they cite and rely on cases holding that where it appears from the 
complaint that the rights of a complainant might have been unduly 
prejudiced if notice had been required, the injunction will issue 
without notice, Skelers v. Mever, 246 111, App, 18; Loftis v# 
Loftis. 225 Ill» App, 478, and their counsel argue that from the 
allegations of the ccmplaint at bar "the court could infer that if 
notice *** were served upon the defendants they could make an imr- 
mediate assignment or transfer of the assets of the partnership, 
or repay the loan of Six thousand ($6,000) Dollars to Kanter and 
thereby destroy the plaintiffs* claim of usury, before an injunction 
order could be entered," This argument ignores the rule that "Ho 
presumptions are to be indulged in favor of action without notice 
***" ( Brin V. Craig f supra ), and that "either in the bill or affi- 
davit such facts must be stated from which the court can see that 
irreparable injury will ensue unless the injunctional order prayed 
for is issued without notice," ( Rieder v. V/hite . supra . ) 

*'.f>noC ^jHO^Jfe' fesffiBTts ed oj id^'o 

HiS gfitii'a&T^ IG- o*}±?C'iiiq o£i& Ho- aolimmBbaot) ni ecJtov iJlB^^eocc 
•^I^jKfjaqslhel has xX'sbsI ;5l«n ^©IJofi issoiiSiv BDlismslal 

l>f»:t.«;t& :o ^J-eiaa 88i::fssc[ ^f;a' ^ftsivon &mHiiiw noiJ-os lo rtovBl 

fti'Ji^a^a ad* 'to noi:;J-qsax9 s?^.5' ulitJiw a^vlse-'sexlt gftiid ^oit c^owe fjrtJB 
oJ" blf^i Bd lli^tf &©ijKa^§ fioX^SBK^trri i:i& ,o£ Jiii:Xi:£^ [Ma] *** 

«iO£ ^qqA ♦XXI ^£X niilfe^Q ,v mljfi ^i^bnvlQzzlb feiss ;?a&£lvo'iqmf 9^ 
bswollot YX<*Hi3CtaiBfi©o iii©®«f 8.3«l is>;*£T^j5^8 »si$ 1© uol^BiJe^q'selfil BJti© 

©^U S®3a0 Isd'iSX SJBO'I^ .!■: * 'J^^ *qO .tJ.X . S.Cf. M? ^V lObot H 998 

•fti^ ssotJ. Else;? ,.'i salMoiJi E«sss ISO xXsi fcns s^Jto T^ffd" 

Qjfz&i XXiw tioliixmteii sM^t ^fcsiHrpei iiB^ti bud «9iioK 1:1 &9oXf)irte'K[ 

s^rfd- otoil :^£i!;r ©i;^'^^ Xeemsoo 7.1©i!^ baa ^8^-^ ,qqA ,XXX ^SS xSM^^ 

'It iBtii islfil foXi»o i-uioi. i& lulaXquoo oiid- lo anoid-ssaXIa 

-aii ojb ssC^ffl bXmo x&di 8^sjBfi!ftf>l9l!i ®£Ji xitoqir fesvise siaw -«** ©oi^J'oxi 

&a^ isd-liija o:f s-s^XXoC (OC>(j,dSJ) fce^sExro^v'' xlB to n^soX «rf;f xjsqsn lo 

cR** d'Bifd' eXtfi 0ii^ Bo-rofigi: ^ffxem^siij axilT " , Ijoi^^fls ed bXxroo iBbr» 
»oi:clOjK :J4TOi-(iir<7 uciitOB 'io lovisl jni fe«»sI*r£>nX od oJ- fena txioiiqiaimsttq 

;Jij£i;t ©e>s iijso ^"lifoo &d^ dois^ moil b^fi^SB •ii itxm aJ'OJsl xioxnt ^±va6 
fesTja^q rt^fcio Xi,no£d-OEUt«i -^^^'^ easXwJ 'juaiw* XXiw x^otsil Blfi£%tq9VKt 

The complaint in this proceeding contains no allegations 
that defendants, or ai^ of them, threatened or even considered 
transferring assets, or repaying the Kanter loan, or that plaintiffs 
had any reason to fear or anticipate that they would do so. Tb© 
argiiment that such a possibility existed is pure conjecture. All 
inferences with respect to the Kanter loan are to the contrary, be- 
caase if any of the partnership rights were to be jeopardized through 
repaying Kanter, Levin and Mrs, Weinsteln, who had substantial ii>» 
terests in the partnership, would certainly not be likely to do so, 
LerlA and ^s« Weinstein had carried on the business for about six 
years after her husband's death, and were still doing so vhen the 
complaint was filed. During those years they had continued to use 
Kanter 's money, and evidently considered it an advantage to continue 
the business and not repay the loan, 

\Vhat has been said with respect to the issuance of an in- 
junction without notice, is also applicable to the statutory require— 
aent for a bond, llie mere recital in the order that "for good cause 
shown" the bond is excused, "is wholly insufficient since no good 
cause is shown by the record," Wagner v. QknoTf 306 111, App, 6OI, 
The statute provides that "plaintiff shall give bond," except for 
good cause shown, and this requires a showing by allegations of fact 
that no injury will result if the statutory requirement be excused. 
The purpose of the bond is to secure defendants for damages iMch 
may be assessed. In the event the injunction is wrongfully issued, 
and defendants should not be deprived of this security, except where 
a showing is made that complainant is umible to give bond, or that 
he is capable of responding in daciages, or that no injury can resiilt 
if the bond is excused* 

Other arguments are advanced relating to the merits of the 

controversy which cannot properly be determined on this appeal, but 

upon the face of the record we think the injunction was improvidently 

issued for the reasons stated, and the order is therefore reversed, 

Sullivan, P, J,, and Scanlan, J,, concur* 

adT . ii^laliiaB ^o -iiiel o;t joosssi xn« bsri 

«(«i X&t^jKJiisic' -xi-: ^iiiWi.! . ■:-i has tiivej. ^toias^ ^txsq9i 

♦atBoX tdji xe^^'i Son Iwu3 8t»iilcx/cf sd^ 

-tfii JS^ Io aauEirgai tdS oi S&mqtt&i iiJiw fcljss fiesrf sad ^Adi; 
'-p-'Ti/ipft x*3E^^^^''*'6 3^ o^ ©i^si>tl«i<l* Q«X« ai: ^s^lctoc ^fwojcfctlw no Wont'. 
^ij^o 5ooa !sol*' itfid^ ^si^'s© Ssii^ fij^ l&ilQ»i »i»fli ad!' ,i>iiocf c 'idI ia«fl 

.X<^ #fC^ •XXI ^C ^^fiiii p .T 'ii'gagy "^fe-Ko^ei 9di %cf .oroi!^ a± ©cjaiko 

^t9JV«aX xljM^iisR^^^ si aaUv . j «tfl,;r xiX «b&e&e&ea ad x^w 

Ssii^ 10 «iUiad jt«i:9i Oi^ i^«^«iu^ ftX tn&ial sdi 9bmi cX anXwode « 

JXeae-x aso ^"stftaX o« i&di no ^&ii»pi»&^ ed ani^woifsoi lo sXd^qiso sX «d 

»JbQKJi;ox9 eX ivxod 9d;f IX 

-itt 1<? slX^iec «d;J oi aai«-'&Xs^ i:9aittv£)s svta s^^nasuffg-jfi YoyiUO 

twd ^Xsaqqa cXdi ao bS(«XatTi©^©fc ©d xXnaqoiq J^oisciv© doXJfr x»rxf*voi:fflO; 

XX:^£tsi)XvofsqiEX 8£w £(0X;f9£UftflX Mkf itnXd;^ 9* Moeei suit iQ fOA) td^ IIQqv 

«b9' J' sX '^s&rso 8di bD» ^h&ifiiB 8iiosfi»i ^d^ 'xot £>»jjs«X 


Defendant In Error, 

__ r' 

and SAM MARSALAj '"^^"^^^ 

Plaint l:ffB iirNBRror, 

.A. 460 


817I.A. 460^ 

"Defendantg and Thomas H, Caradine were Indiefed for a 
oonsplraoy to violate the v.lectlon Laws at the mayoralty election held 
in Chicago, April 4, 1939* The Indictment was returned February 29, 
1940, The trial began January 6, 1941. The cause was submitted to 
the Jury January 22, 1941, After deliberating twenty hours a verdict 
of guilty against all defendants was returned, fixing their punish- 
ment at imprisonment in the penitentiary. Motions for a new trial and 
in arrest wei^ overruled and Judgment enterednacoordlng to the verdict 
of the Jtiry. 

The unlawful acts charged were in oonaectlon with the election 
conducted in the 15th precinct of the 42nd ward of the City of Chicago, 
Defendants McCoy and Caradine acted as Republican Judges. Defendant 
Frank Tornabene was Democratic clerk and Ada Stevens wae Republican 
clerk, she died pending these proceedings. Harrison was Democratic 
Judge, Marsala was a watcher for the Election Cornmissionera* Monfortl 
was also a watcher, and Radaha was without official status, 

Caradine testified for the State, At the close of the trial the 
indictment was nollled as to him. The verdict returned was against 
Harrison, McCoy, Torabene, Radaha, Marsala and Monfortl. 


There was a preliminary motion that the state be required to 
elect on which of the several conspiracies alleged It would rely^ 


,^:^.. YI^I:^cr ?y.^HOTAM soitbui, ©Hi^a?«w •«! 

*!/ i.^^ ,>«-' w^«^-.ft .-. 

-iieiifiijfq. 'sl'^^xf? -gMlTlt ^!bsmiiti''i aaw a^ni^itnetal) XXjs ^Qiutjegja ■^tJXiwg to 

*cs«'9MJ> "5:0 Y/J'JtD mi to iif^s'^ fengi* eaf* !to i^oajto'nq xl^ax eii* ai boSoubnoo 
asoiXdwqeiJ ??«« snovo*8 AfeA feisc aJnoXo oi?ai»oiB«»Q saw 9fl«rf«inof inai'i 

,«i/;Jad'3 XBioIlto tr/o£»l» ai» ai<iBiuiH Me »i«<r(o;faw a oaXa saw 
*il^ XaJtid- odt ao oaoX© ^xf'i . «^e ©li;^ toT: J&©ill*a9? ©ni&ja*t«0 

^acljBga SAW &»flii;if9t *oi6^'>v 9/iT ,talsi oi na fcciXXoa saw ^nefli^oXJbnl 

.tB*6 ario tad^ noittai •^|8UJiix±a:iXt-tq a saw Ofc«ifT 


The motion (denied) was renewed at the oloae of all the evidence and 
again denied. It le argued the court erred In denying thle motion. The 
Indictment alleged defendants conspired "together with each other aiid 
with divers other persons whose names are unknown" to make a false 
canvass of the votes cast In the precinct, and to sign, puhlish and 
deliver "a false return of said election" and "a false statement of 
the result of said election in said pz*ecinct and of the total number 
©f votes cast in said precinct for divers candidates" and "a false 
certificate certifying the correctness of said starement". The 
Indictment then goes on tdt state the particular acts of the accused to 
that end» There was only one count in the indictment. In support of 
their contention the oourt erred in falling to require the state to 
elect, defendants say that only the defendants who were election 
officials could have been guilty of making a false canvass or 
delivering a false return; that only the three watchers could have been 
guilty of causing the Judges and clerks to do this, Tb*» judges 
and clerks. It is said, could not "Induce themselve" to make a false 
canvass or return. There were, it is said, two groups of defendants: 
first, election officials, who oould make a false canvass or false 
return; second, the watchers, who might have Induced the officials to 
do so. In other words, it is argued that the indictment does not 
charge a single offense in varying language but in a single count 
charges t«/o olae-es of defendants with distinct and different offenses. 
Qoodhue V. People . 94 111, 37; People v> Wolf^ 358 111. 334^ 
Johnson v. People. 124 111, App, 213, are cited. We are not wonvlnced. 
The indictment was in a single count. Defendants made no motion to 
quash it, TJw conspiracies described in the indictment did not 
proceed out of distinct and different transactions. Therefore, the 
People were not required to elect. People v, ,Pulliam . 352 111, 318^320, 
Peojgle ▼..Curran, 286 111. 302, 312, Moreover, those advising, 
assisting or abetting (If any did so) were Just as guilty as the 
principals. People v. Van Sever. 248 111. 136; Llonetti v. People . 
183 111, 253, The point is well answered in the Curran case (above 

;-5aa sois? .'~^s ?rf^ IL& lo eaoXo «mJ* Jjs j&(3ir«««^ m£>m ibolasb) aolJom ©riT 

£cta lailj .Uj 't9£[;tr^sod'" fieiiqoijo© eJ"i2ijiiii9teJ& iejjsIXa JfiSflntol^njt 

ijfls deila'ifq ^xisis of bna tioaioet^ v.'ri ci ^s«ic rs^ot 9/f3 lo seATUftO 

®dT .'**itfiaj'»'T6*8 blAei to aaaji^oe^rroo ells' snlYtid-t*© sJjsolllSnec 
07 desi/ooB 9/f* to s^oB •TBlyoi^i^ 9tf;j Atj$:fG A'^ no asog floxi^t ^ji9r^9ll>al 
to SiomuB III »3'fiSD5;fsiBfsi sriJ fii drstroo enc ■s; 8xv<» aneiiT tbne issit 
oi 9i»tB &£l? (yilupBt e* a^iXXnt ^ bo^'iQ. iiuon >:'.t Roi;tflfi*noo iler 

to as-QTit^o saXaS £ S'^JLs'.eia to \:^Ii«a piesd 9Visi£ Jblwoo aI«ioit1w 

ssglMft 91^ ,8ijtf;f o^ &i Bitslo J&na Qesl>srt sjl;r aciauAO to x=^Iiiia 

csxiii £> siJiMa 6u "evXsaffiPia^ eowfjni" tea &I«oo xbl»s bJL ?i ^wlielo J&rus 

jacffljaficfttsb to aqi/oig ow;r tfcljse ei ;?! tS«x<iw ©le/iT .a^tKrei to Bsiavmto 

saXiit no easvcao eaX-ftt a «:!i.££i Muoo ©rfw ,aXftioX' nci;fo'i?l9 ,^a'iit 

■J aX^laitlo sdi JbsoubcX stjwI Jiiglffi cxiw tSiedo?^* eri* tJE>nco«a latui&i 

' ;->mioJU>£iX srfiT ^aC* tows*^ ai :?! t«6tow tadSo isl ,03 o6 

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.asans'llc cTise^^e'ilijn pi>-c tL:fi^ alfij&^HCtob to is^asl® ov/J ass^^'" 

41^"-". . ' " 33C ^tXoW «v^ tV5 ,111 ^6 t»Xqct>^ .v e<«l&o v 

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noliom on ebessi niaAba^tsG **ru/v.y wxi^^nia ^5 «i aiJ* #nsaJolf)iil ">dT 

*on M& Jflom^roJt&cX eil:? ai bodlzoMsb asios'iiqBncii «^ .^i dasup 

','XiJ »oiot9iaiiT .anoIJo-'jenaicr tnft-i'i'itll) Sea SoaliBlb to *tfo *9©oo*rq 

,0SS4:;u':. .Ill see t m&lllif%. *v eXgcoSt .SooXq oi bomlapBt ton aiw eXqoe<£ 

^^^olalvbB f>BCi:^ ^levoeioA'i •S:X£ tSOg; ,1X1 86S coa-rn/O. «▼ oXooe^ 

'-ft^t "-i x^-tXu^ BA a-But. »tew (oe bX£) xna ti) -Qtilii't^dsi io snX^TclaaA 

t -X'.i'.:^'-... >Y X:tJf^noiJ ;eex *XXI 8*-S ,«t»veg ngV .▼ . 9Xqc9<l. .sXiiqioxiXiq 

Avorfw) ftf! >n ne 111/0 orfd" «1 Bs»i9WBitA IXftfr il Jnloq 9sS^ \ZdSi .XXI 581 


"The oonapiraoles charged * ♦ » were different 
parts of one eoneplraoy and the right to demand 
an election does not apply la such oaee," 


It la contended the court peradtted the laqsroper use of 
aeporanda by wltnesseg Kell and Dlneen for the prosecution. These 
witnesses were clerks In the office of the slection Commissioners. 
On DeesBber 12, 1939, Kell opened the ballot boxes and with the 
aid of another employee, C«osek, recounted the ballots, Dlneen on 
Decenaier 19, 1939, and April 4, 1939, took the ballot boxes before the 
arand Jury and opened them, each of these witnesses testified that he 
made memoranda as to the condition of the boxes and the ballots, etc, 
at these times. The memoranda were In their own handwriting. They did 
not hare an Independent recollection with referr^nce to the facts appearing 
in the memoranda. They were not asked the precise question as to 
whether the memoranda made by them were true and accurate, but <:^er ua 
•ay that they mere able to testify as to the facts after reading the 
same and a necessary Inferencs was that the memoranda were true and 
accurate. The court over the objection of defendants ruled that the 
witnesses ml^t hold the memoranda In their hands and refresh their 
memory therefrom as they went along. 

In Koch T. Pearson, 219 111. App. 468, this court gave careful con- 
sideration to the question of when a writing of this kind, made at or near 
to the time of the occurrence, was admissible In evidence. We there 
reviewed the authorities at length. We said: 

"Where a witness testlflem that he made a 
written report or memoranda or the occurrence at 
or near the time of Its happening, but that upon 
examination of It he has no present recollection of the 
matters therein stated except that he knows that It Is 
•orrcot, then such report or memoranda Is admissible 
in evidence. " 


The defendants cite Diamond QlUe Go. v. Wlst»yohow8kl > gg? 111. 
338, 346, an d People v. &reenspawn, 346 111. 484, 492. Defendants say 
there was no foundation laid for the Introduction of the exhibits and 
that on no legal principle could the reading of theso be Justified. We 

- ■■-* >'*'^x'!t ftdt baa ^o»T[ii|«ao6 ?jno to ati&q 

mi^ ^tdtdtf eiaxocf toiXi!^ ntdi iooi «6$@I «i^ IjN^ bttM «9e€!X «ex tttfBOO* 

»£i iadi bBttltnoi !}&a8 9£ctiv »aft£i;f to tUi&'A ^^dS bsaoqe tea t*^'^ ^^*^ 

,fi:r@ ^s^cXl^cf dd^d^ SfiA 8 0XQ<f &/f;t to nci^i£ii09 Sil^ ot sfi Ai^turxosMi •£« 

■^titi»ftqqA »^o«l 9xl(t g4 ^oa^i^tfit dilw aoi#«9XXoo«^ tti«te«q»tei JU vrtkd to 

Qi as iioi<rer&fp BwlQstq, ea^ betum ica eip^ %fa£T ««teii«roaMt m(^ « 

M& #Plf# tJ^cf «^;ri»Ti;oo« Ms eti'x;r s^sw aetiit x<f ^^A^bv AteavoMiiMi ed^t n«d$9d 

9di ^IhiK^n i&itA &i9Al (»£i:i oi a<' x1l$»&i oi dXcf^ •!•« xexf^ ;tAif;t x« 

hrsA ^irti diew ^IkOia^cfiisyB 9x£;^ ^sal^ »&» 9aae*i9tisi t^aeaaoait jt tea mu 

aritf *jsd[:t 159X01 a^i»«*uots*6 to acia^O'^t^o ?»^3 t»TO ^tuo* citT ♦•tanwoo 

'xieiiv^ iiftei«it«^'x tea atead «Lt«iaur aX «&fisico«aje 9dt bXuti tsi^iM aoaaan^i 

,^oX^ tMftm x«^ 9A aot^smodt "noata 
-«oo X*tart^o era® 2^iwo« aXiS* ^88* ^qts^ ,Ul 9M ^tt6miAt>% >v |tOQl al 
i^s^n •so ^& 9>li^i ibnl:k tsMi to i^XtlfX'rs a ttttn to Jtoifaavp ed^ ot aoX^ai^aBi 
»t<-irf-J «^.V ^^':jniibl^r> jri e ItfX a »!£.:■ Sii as.:^ « dd/!«<rxir«»ao '^t to ftalt ad* 

a 9Ai«at «fl =J'«r*- - " 

9dt t© flci,...-. wvt'fi^ d'nos-.'j- 

bX *X ;*«£[..* 8WOff:« 91i ^r,i(^ . 

. T-oneX^iy* nX 
.XXI VSS fl XXa^Yodotat^aXY; «v *oO €>t>XD i)/ft.a.iXa ©;tXo a^flaX«i«)taft 60.1 
X^m BinAijnttle^ ^^6* i*-3l^ •Hi 'oH, ,m_ _^.y eXgcsl & na »d>C ♦flC! 

j&n£ atfXcfXiXK^ adi to fiC)X;roArX»oi«jal.|il^ tot £iaX aolt ibaisol off aav ar[ad< 
. bi^lttttBUl ecf v)a«£(4^ to giiX baai ariJ JaXiXod sXqXonXiq lassX on no *ad^ 

think the record does not Justify this statement. The writings 

were in the handwriting of the witnesses and wej?e made at the time 

the events occurred, to which they testified, While the precise question 

&B to the truth and accuracy of the same was not &eked| the testimony 

of the witnesses shows that to be a necessary inference* 

Tim situation was not unlike that which existed in Alleigretti y, 
l^rphy-alles uil Co,, 280 ill, App. 378, where this court said: 

"It has been held that where a writing has been made 

by the witness^ - or at his dir- otlon at the time of the feat, 

for the purpose of preserring the memory of it, if at 

the time of testifying he can recollect nothing further 

that that he had accurately reduced the whole iransa6tion 

to writing, the writing itself may be admitted in evidence, •• 

Among the many cases cited as sustaining this statement of the 

law is People y, Qreenspawn * 346 111, 484, on which the defendants r-^ly. 

The Supreme Court there said; (page 493) 

"It has been held that where a writing has been m&de 
by the witness at the time of the fact for the purpose 
of preserving the memoiry of it, if at the time of 
testifying he wan ireoolleot nothing further thajn that 
he had accurately reduced the whole transaction to 
writing the writing itself may be admitted in evidence to 
go to the Jury, " 

It would ordinarily be quite impyossible for any witness to 
remember precisely everything about the condition of the i^allots 
and the boxes at the time the same were opened and the memoranda were 
obviously made for the purpose of preserving the facts. In a situation 
like this something must be left to the discretion of the trial Judre, 
We hold the Judge did not abuse his discretion in this respect and 
that at any rate the defendants wer« not legally prejudiced by 
admission of this evidence*. 


It is next contended the court erred in redeiving in evioenoe 
alleged vonversations of defendants subsequent to the re^m of the 
indictment, Mrs* Brady C le, a witmese for the state, gave testimony 
to the effect that when the case iwas on trial defendant Monforti came 
to her home, asked her to be lenient, said sofliething about her going 

ji'ljMt itiioo Qtdj si^dff ,8^5 .qo> ,1X1 08S t,oO II aslJU-^^itfuat 

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tr *.?i ,5^1 "' 5ftt lot 

fiL J ::__-..:■:- .. ■ ' ' aaaii 

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to ewlff 5tfi^ *« "J' ,-*•' "^ •"':«•« adtf Hfiivnoewq to 

iMt CAiit io£lJnW5: oe^ naa tatl gflJiftitfa'^s 

ojf iioiJosamrrd^ - . v-t ^r5>#arwo9A fiiad aef 

:tt«iJ^«# 9fi:f tc aaliXbaojD ed^ *uc«fA grUd^vi^T* tXaalae^q Taltaiaarx 

o^s^v &Sfi$i<%c«»ffi ad^ l»isa b&si9qc aiev asaa aji^ soUl mii ta aaxo<( adi JMia 

aoti&utlsi » til .atoxit ^^ scUhnaad^q; tc aaoqiyq aji^ ict aAaa xiavcJhr^o 

,£) but, .UinS' ^vi;t t^^ a<jl^ 9jii ot *taX otf ^am iaXiil««oa alxIJ aiiX 

fenj ?0'<qa:t siH^ ni noXifariaaib aii( 9BWiM foa btb a^Aift aii^ bloA aW 

V^ boolfei^t-T^ t-f-^^®-^ ^^^ ^^'^^ 8;tfl«bft«taJ> adJ atJ*i Xf^ ** ^*«t'' 

••oaaliva alil^ to nolaaialba 
90is9f)iv« ai Sflivia6«n ni fia^T^' Mfoo «ri* ftajbnataoa Jxaii ai *I 
ariit to rrta;ta«i ad^ o^ ^flai/paacfira atna£*i!atA& to uaoXSMBtmrtam fies^XXa 
Ynoni?B«>^ dTi$s tniBtB adr fot Baa«;rii* a taXcO t^'^fi •at^ •^aaiitoi^ai 
sffijaa X^totiwi. crnRondtei^ Xaii^ ne aaar eaaa ^{jl;^ aaiiir ^aci^ ^oetta ad; 
Snic^ lad ^tfocfja gniiifftaoa Mjsa «tn»iiial acf o^ lad Aalaa «aaotf tti oi 


*«ay and that If she would she would act have to worry about expenses. 
The eourt Instxnicted the Jury this testimony should be considered 
by them only as to Monfortl and speoially limited it to him* Defendants 
argue the testioiony was not oonpetent STen as to Moaforti because the 
conversation was held months after the termination of the oonspireoy, 
and cite people v. D^al. 357 111, 634; People v. Blawk , 367 111, 209; 
People V. Spauldinne * 309 111. 29£; People v, Rappaport . 364 111, £38, 
It is admitted that where physical violence has been used \mder like 
ciroumetaneesf evidf^nce of it will be admitted, as in People v, 
Spauldin g^309 111. £92; People v. Bloom . 370 111, 144, But defend nts 
argue it would be dangerous to extend this d3ctrlne to conspiracy cases 
unless all the conspirators participated in the conversation. It wag 
(they say) "poisonous and prejudicial" testimony. We hold the point has 
alr'^ady been decided contrary to defendants* contention, ^Hiarton's 
Crim, F^Tld, 11th ed,, Vol. 1, Sec. 306, p, 410; also Vol, 2, p. 1205; 
People V, Throop , 369 111. 354, 361; aaitte v, Tate . 171 S. f<;,578; 
Watson V, State. 146 3o, 122, l27l Peopl e v. Strait . 279 C. W, 109, 114} 
People V, ^ory . 226 Pao. 754, 756; Fox v. Peopl e. 269 111, 300, 322» 
Monforti testified, denying he made the statements attributed to him 
but admitting that he talked with the ''fatness at the time in question, 

Defendants next eam'^etly contend their conviction was obtsined 
by unfair tactics, oitingnwith other cases People v, Blockburger . 354 
111. 301, 306, one instance complained of is that police officer weairy, 
who had been seated iramediately behind the State's Attorney in the trial 
until the end of the afternoon session, on Monday, January 13, 1941, 
arrested Monforti at the entrance to the court room. This is said to 
have been without excuse, since Monfortl was a married man, was under 
a surety bond, had, lived for fifteen years in Chicago and was hot guilty 
of conduct which would indicate he was about to, leave the Jurisdiction. 
Another complaint is made that the daily press unfairly featured the 
story of the arrest of Monforti* The headlines are described as "vicious". 
The Jury were not looked up. They went to their homes each night. 


'^«ioiioiailocr"<tsa ^«fii^) 

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, .-^ 3C>J ;day «^V .; , .V «XqQ»5[ 

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•d^iigln xio<a9 aaaod niari;}^ i.i itn^w xti^T •<Ii' b«i9oX ion nn^m xtul MfT 


Defendants made a motion for mistrial because of these occurrences, 
and their motion was denied. Defendants say the publicity given by 
the presB was deliberately planned, Frank Peeoraro^ a defense witness, 
testified on January 16, 1941, He said he had been threatened after 
the adjournment of court. On the following morning (Friday) 
defendants say the State's Attorney entered the court room accompanied 
by two policemen, and as Pecoraro was leaving the court room he was 
taken Into custody by the officers. Defendants asked leave to 
Interrogate the Jury on this situation in order to determine whether 
the Jury had knowledge of these things or was influenced by them« 
Their request was denied. Peop le v. ^Duncan, 261 111, 339, Is cited 
to the point that the denial of this motion was error; also state v. 
Clark, 27 Idaho 48, an d Mitchell v. State . 114 Texas Criminal 301, 
We find nothing in the record which indicates that the facts with 
regard to these arrests or the publications in the newspaper r ached 
the Jury, Learned counsel are not unaware of the proper method by 
which such matters may be plawed In the record. Matters of this 
kind are very much in the discretion of the trial Judge. If this 
were not so, trials in hotly contested criminal cases would rarely 
be final. We hold on this record we would not be Justified in 
reversing the Judgment for any of these reasons. 

It is also contended the court unreasonably restricted the 
oposs-examlnatlon of Ollie Kelly and Pecoraro, witnesses for defendants. 
The witnesses had testified that Radaha was not in the polling place 
After it was closed. The state on rebuttal produced as A witness 
-ifeaaceolAf a court report ter, who took the evidence given by them 
before the Grand Jury when these witnesses had testified that Radaha 
was present in the polling place, Defebdants objected to this 
testimony on the ground that they had not seen a transcript of the 

Tjcf a wis X^.ioilcfwq «r:r ^"nA&n©^«C ,l)9ln9l> a«s rtoiJoia iledJ JbflA 

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•anoBAei »a©ilJ lo xtm lol ;fn»ia8l>j;/t »£t3" ^jciaiar©- 

eii'Jt 6f^^fili;?8vi ^Xcf£>noaiJS*MH/ cfiijco mi^ b&basttaco oaX* ai «I 
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aiiii' 0:^ b9io9l6o sJrxaMelsG .aosXq snllXoq etli at *n«a?i.. 
0x13^ 1:0 *qiiocnat:f b nsso *on fijsil x^d'^ *^* fiiiwo*t8 ad* no xnoaXJasJ 


evidence. They asked reasonable time to examine It, whloh was denied. 
Defendants say they could not orose-examlne the witnesses properly 
without the transcript and cite a number of cages, such as Caeteel v« 
Mlllison, 41 111* App. 61, 66; Harman v» Illinois Ooal Co, , £37 111, 
36, 39, an d People v. go re 11a, 562 111* 218, 222, that this was error* 
We hold there is no merit In this contention. Defendants knew these 
witnesses had appeared before the Stand Jury. They could have applied 
to the court foma transcript of any testimony whloh they thought was 
Important, They did not do so. In Cannon Vv people , 141 111, 270, the 
defendant argued error in that the court refused to require the state's 
Attorney to furnish the defendants' counsel with minutes of the testi- 
mony taken before the Grand Jury, The Supreme Court said that It had 
not been referred to any authority sustaining such a practice and the 
practice In thit state had b^^en uniformly the reverse, and said there 
was no error. In the recent case of People v. _Fec:,ele ,566 111. 618, 
whleh was a prosecution for conspiracy to oororalt criminal acts at a 
primary election. It was held It was not error to refuse to Issue a 
subpoena duces tecum for the production of a transcript of the testimony 
of a witness which had been given In another oourt: that the transcript 
was not of a public nature and could have be n obtained from the 
reporter In the same manner ts the People had obtained It, and that the 
court hfcid no duty to c@mpel the State's Attorney to surrender his 
oopy to assist counsel for defendants In making out their case. The 
oourt cited ^^alker v. Struthers, 273 111, 387, and distinguished 
People ▼. Qerold, P65 111. 448, as well •■? ^People, Vo Baf611a^362 
111. 218,228* upon which the defendants here rely. In the Borfll la 
case it appeared that the State's Attorney on crosf-exaffiination of 
defendants appeared to be reading from a written statement purporting 
to have been made by the defendants. At the conclusion of the cross- 
examination counsel for defendants asked to see the paper In order that 
he might further examine defendants and explain matters that were 
claimed to be impeaching, and It w&s held error to deny that request. 


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9T6W cTiSLri* 8T:e; nljelqxa ftiw a^flBfenstel) anlaaxa lad^iul *xi8im «ii 

♦ at; 31/091 d'.'-'r- vr*..;: ,-,:)■ toti?"* 5 Toil' aii.v uX Sr-w ^snXrfoAsqfnl 9d o^ l>9aXAXo 


That was not the situation hez*e» and we hold there w&a no error In 
this respeot. Defendants point out that Bueh was made of this 
impeaching eridenoe in the closing arguments of the state Is Attorney* 
The arguments are not, however^ pr?* served in the record. That it was 
persuasive evidence we can not doubt. However, it wag in the record 
and the State's Attoraey would have been negligent if he had nitt 
called it to the attention of the Jury* 


The controlling question in this case is raised by the contention 
of defendant that the court erred in receiving the ballots in evidence. 
Defendants sayt "The burden rests definitely upon the People to prove 
beyond a reasonable doubt not only that no person did actually tamper 
with the ballots after they had been sealed, but also that during the 
time the ballots were in possesion of the :leotion Comraiseioners there 
was no reasonable opportunity for any p > son to taaper with thea« « In 
support of this contention two election contest cases are cited in 
the original brief^ Alexaadf^r v. Shaw , 344 111. 389, 393, an d Anderson v. 
Wierschey . 373 111. 239,241, Defendants say if such be the rule in a 
civil matter, much BU>re should it be the z*ule applicable to a criminal 
case like this, where the liberty of men is involved. Defendants sey 
It can hardly be \trged that the State having the burden of proof can be 
said "to have proved beyond a reasonable doubt that there was no 
reasonable opportunity for any person to tamper with these ballots"* 

The evidence shows the ballots wez*e placed in the boxes after 
the counting was finished and the boxes were sealed. The polls were 
closed at 6 P. M^ The boxes were returned to the 'Election Commiesioners 
office between 6 and 7 o'clock P, M. of the same day. These ballot <- 
boxes were taken from there by employees of the Election Commissioners 
to a warehouse in the possession of the Election Gommlsn loners, where 
they wern stored. They were sorted out by the employees and put in vaults 



iti iro*n» Oil •«? wwsiM i&Iori sdr ftp? i»?rr»d noi3^a*;?j£8 axi* S^on b»v ^juH" 

;f^c bMx : JnagllSen ne^tf *Tiiji 5Jj/cw x^cJo-tJA a*e:t«t8 «£fl 6ii» 

fiClJneiJ'noo ad* \d benXjsi li eajBO ^lif:? nl nc itasflrp jiftilloiJnco aff? 
4«diia6iv9 fil aifclljacf ed^ snivl- i. :twoo erf? ;f.«ttW #flaJbx!9l9£> T:o 

iBqmA^ Xlls^t&fi bib flwaisq ,.,. ;^^_. , „ 3'tfwc6 9Xdimeaa*?rt is Anexatf 

anadtf fiisncisslfflBsoO aoi^dsX "fft to aoisasaoq al si©w edfoIXstf -Ml^ sffilJ 

III « ♦mari^ xlJXw laqKa* o* fiod a \ajfi not x^icurt-^ioqqo dXcf«nOBA^ oil aaw 

-;* '^-tlo sija B»8JB0 *a»*n&<» ncliJofi - "* ncliJaa^isoo aixld to ^tocfrrMa 

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Xs« a^nafciis^ ."; tXctoX ai n«w to X*'t««^-2i ^d* is^adw taiil? »iiX aaBr) 

9«J OS© tcciq to nsii'Siitf eiri? sniyAri ©3a.t ari; A«3l<s& f»cf xXM^jf fu§© Jl 

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->toXX3Cf »a«riT tXAb Mtas «ii^ to . ► 'oolo'o V B«a 6 aB^intBd nctV 
aTenoleaXmeioO rtoli^oars Adit to aeexoX<iffi«» %d 9n9dt at«<tt naiUtf^ «rr»« asxco 
enaifv ,8iafioiii>alfflBioO aoli9Bl2 9dt to noiaaeaaoq «il? til 9Bucd»tam m 
uttlsJMr nl iuq bti^ a&exolqass 9d'J x<i iuo b»^i09 stew x^"^ »bMC*B iiaw X''- 


thejre. All the boxes from the 66 precincts ofbthe 42nd ward were 

80 sorted and placed, Including the boxes from this 15th precinct. 

The ballots and the boxes were taken by employees of the Election 

Oommieeioners to the Grand Jury and there examined. Prior to that 

time employees of the rciectlon Commieeioners, Kell and Grzech, opened 

the boxes and made a recount of the ballots by direction of the 

County Judge on December 12, 1939. Also, Katharine Keeler, an examiner 

and photographer of questioned documents, examined the ballots in the 

presence ftf Williaa Korsland, an employee of the flection Oommicslonerfi* 

It is not argued by defendants that these or any other particular 

persons changed or taapered with the ballots* There was evidence of 

witnesses (the weight of which was, of course, for the Jury) to the 

effect that the ballots had been marked before the count was going on 

at the polls by several of these defendants* This evidence was positive 

in its nature. The ballots have been produced for our inspection and 

corroborate almost to a certainty the testimony of these witnesses for 

the State* The recount showed one candidate had been given 58 more 

votes thai he was entitled to receive, his opponent 37 less votes than 

should have been counted for him. The total ballots cast in the precinct 

were 470, aimilar results were noted as to other candidates on the 

respective tickets, 

Mrs, Keeler testified (and her testimony is not contradicted) 

that numerous ballots show indentations which she compared and foimd 

the same must have been made while the ballots were piled one upon top 

of the other. She also found the corresponding embossing which would 

occur in such a case, 77 ballots bore cross marks by no less than two 

different persons and some of these by as many as three different persons, 

32 of the 77 ballots bore cross marks that were matched by Indentations 

on other ballots. 53 had cross marks in the Democratic circle which in 

her opinion had been made by one andbthe same person, 8 of the 77 besides 

the 53 bore cross marks in the Democratic circle in her opinion made by 

one person, 5 or 6, 6 altogether^ one from the group of 8 Just mentioned 

eioy/ Msw fiaS* sridcilo eJo/iio-iq gS eri* h©-!! asxod exiJ Hi- «9^»££tr 

.^oitior^q £l;rei lid^ ^^nt affxccf «»a^ snifeuloxii ,6esM5Xq l>iijs b»;?i&8 ©8 

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odi no a©J«&i5n.30 tsMiTo ct au Jbs^fcn s^ow eJXireai l&Xiaiia .OV^ ©^sw 

,a;t9j[oit ©vi^osqoOTt 

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qo;t fioqu ©nc .beXiq bisw atcXXJKl act* sUdv obsa n^prf ^vx^i Jai/o emAfi arit 

hXuGW lidiiiw snieeodES aniMoqadvioo erirf fini/Ci oels «ri« .isn^ro «W 1« 

owjT flJSfl? sBsX on Yd eii«ffl *»qo<io ?>nod a;roXX.c4d V"P ,©8*0 a doua til nwood 

.^moaisq ^nsteltliJb yitsii a« A?;nf>«t q^j "^d ©a-arlt 1;. amoa bna anoateq *nei?tmi 

ni fioirfw ©loiio oiJjBrrooiBea aii* xii ©i-sxim aeoio 6firi 53 .8;roXX-^d t-'di^. iig 
«©i)i8od T'V odi .noa-ieq «>ia«a ©d^dfcnjs eno ^d »&«« nsod iifiii flciniqo ti4 

Xd ©fc^Jia ncifliqt lad ni ©Xo^io oi^sioomsa -fl* ni a3(i[«« 8 son© ^-xod ce 
imncnaea iBvl 8 Ic qiJois ari* moi"i eno ^ftd*98<^i^i^' d »© io 6 .noataq 



and 5 outside the group of 8, making a total of 6, bore crosB marja 
In the Third Party circle, which In her opinion were made hy one 
person. There was a miscellaneous group of 11 ballots* £ of which In 
her opinion bore cross marks by two different persons* 

Witnesses testified positively they saw Radaha* Monfortl and 
Marsala marking the ballots Just before they were counted. The 
condition of the ballots corroborates this testimony, nit Is clear 
no one of the defendanits who was a Judge ©f election could have been 
Ignorant of what was going on. We hold the pl^Dof establishes the 
conspiracy alleged In the Indictment beyond a reasonable doubt. 
People V, Amore . 293 111, App, 505, affirmed 369 111, 245, 


On oral argument our attention was called to the recent case 
of People ex rel, Rusch v. Ferro , 313 111, App, 202, where a conviction 
In the Coxmty Court for contempt against certain election officials 
was reversed for the reason, as stated, that the proof did not show 
"that the ballots were preserved in such manner as to establish their 
integrity as evidence". Without reviewing that lengthy record in 
detail it is sufficient to say that themproceedlqgthere was not in 
the strict sense a criminal case but for centempt under the statute. 

In People v, Newsome, 291 111* 11, Newsome was tried and 
convicted for fraud committed at &n election. The fraud in part con- 
sisted of altering ballot? and was of the same general nature as the 
offense for which defendants were tried. It was urged in the Supreme 
Court that the ballots had not been preserved properly and that none of 
them had been identified by witnesses. The Supreme Court (speaking 
through Mr. Justice Carter) said: 

"Whatever may be the rule as to the competency of 
ballots in cases of election contests, such rule does 
not apply to the competency of ballots in a criminal 
prosecutl n of this character. They were admissible in 
evidence, together with evidence of the manner in which 
they had been preserved, for what they were worth, and 
it was for the Jury to determine what weight should be 
given to them as vwlLdence under all the circumstances 
of the case." 

We hold the trial court did not err in permitting the ballots 


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:6ij8a (isS^&D 90i:t8i/L ,tM d^uot 

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to be received in evidence* 

With the ballots in evidence we hold that there can be no 
reasonable doubt of the guilt of Harrison, McCoy, Radaha» Monforti and 


Howevwi thpre is/ somewhat different situation as to defendant 

Frank Tornabene, As already stated, Tomabene was the Democratic 
clerk and Ada Stevens the Repliblican clerks Ada Stevens became ill 
before the eount was oontpleted and after conferring with the Election 
Commissioners McCoy took up and completed her work. Tortiabene was a 
young man about 23 years of age, married and employed as an inspector, 
timekeeper and order packer for Colonial Premier Lamp & hade Company. 
He had been so employed for about seven years^ He was not accustomed 
to participating in politics. His income was only about ^57*50 a week, 
and he had no other financial resources* He applied for an appoint- 
ment as election Judge for the sole purpose of adding a bit to this 
small income. He applied for an appointment as Judge instead of 
clerky but he received the appointment to the clerkship and accepted it. 
He appeared at the polling place about 10 minutes before 6 o* clock 
on the morning of the election. It is not claimed that during the day 
there was any misbehavior in so far as his duties were concerned, end 
watchers from the Election Commissioners office were present* When the 
polls closed at 6 o'clock it was suggested they should eat bejBore 
counting the ballots. He went with others to a place in the back room 
where the election was held where sandwiches were made and sold. He got 
some sandwiches and ate them* Me afterwards went to the toilet room^ 
He had nothing to do with sorting out the ballots* He did not touch the 
ballots during the entire evening. His entire duties consisted in 
tallying as the Judge called off the returns* He did not see the 
ballots as they were tallied. Watchers were looking over his back to 
observe the tally he made, and no one has made any complaint or 


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testified to any misconduct. When the eount was oyer be went 
with the other officials to the office of the Election Ooiamisslonere* 
He testifies positively that he did not see the short penciling of the 
ballotSi and there Is no positive evidence In the record that 
he did see It, He lived next door to Monfortl, whom he ] ad known 
for Bjany years. He ge^e Monfortl's name as a reference when he 
applied for his ao ointment with the Election Oosualesloners. From 
an examination of the evidence bearing upon his conduct we are 
persuaded that there Is oertalnly reasonable doubt of intentional 
wrongdoing and guilt under the law In so far as he is concerned, 


It Is insisted the court erred In refusing to give essential 
and proper Instructions tendered by the defendants. We do not deem 
it necessary to discuss these alleged errors at length. Refused 
Instruction No, \ was argumentative in its nature. Refused instruction 
No, 2 on the question of presumption of innocence was fully covered 
by Instruction No, 12 given on behalf of the People and by 
Instruction No, 18 given in behalf of defendants* 


Finally, it Is said in behalf of defendants that the punishment 
Inflicted upon them Is cruel and unusual. It is argued that their 
punishment is too severe. The punishgient imposed is not light 
and it Is apparent that the Jury did not regard the conduct of the 
defendants as a light matter. Neither ean we so regard it. To wilfully 
and intentionally deprive oltiaens of the right to have their ballots 
counts* as cast is a most heinous offense, A Jury found defendants 
guilty and a Judge, who saw defendants and heard their testimony 
and listened to all their lawyers had to say in their behalf, has 




ii£i;t lo gnilleneq Jiorfe orfiJ' eoa J'cfi dl* ad Jjarirf" ^IsnrlJlgoq aslliJe©?' " 
Ss&di Jbioosn s«ri;f xsl eoHe&ivQ evJt^jteoq oc al aisxtd" f>rts ^ad'ollad 
-rwonaf feel sri Brodw t^vli^lireM et t^cS Jhcsn fesrvll ?)H .ti y?a bll) ad 

stG-s^ »»i«noi;aslflaBo&. aol*#»X«!i ©d^ d*Jtw i^n^minlo -:& alfl lol bello 
m.& sw ^0tfj3nco «id sioqu ^Jt"rj»«d ©oaafaive itd# to jae±$»ti£faej^9 c 

•feemaoixoo ai afit as lal o« ni wel ©xi-t is6m/ ;H1«§ Jbn* j^fofegflOTW 


fceisT&o •^IXift saw s©n»oonr.l to isoi if qisj/aeiq lo cola's swp sdJ no S ,oiC 

-^d M^ ©Xqo©5 9d* to llisileo' no a&vtg 21 •o>i ncI;fojin*8fll ^cT 

*3*ii«bcel®& tc llsd^d ni fi«vig 61 ,oM aoLtoinccfanX 

:?flefi»jrtajti-t«q edt imt sttu^ 'a^t^b lo tXad?»d ni l>i*i« si ;fi t^XXani'? 

it'&d;^ i^i b^iSTt^i^ ai J^I *hm&xjats baa Xsurso ai aad* noqw bBiolltal 

Jd^iX iJ^on si ^eeoqaii d'ae^aiituq edT .©i«V88 oo;t ai ;fns«riainuq 

.i«* Ic «fouijflco sdi bnsx^fii tatt btb fitrj, 9>di J^idtf JneiAqqa «i Ji bttB 

,IXju1X1s o1 .Ji fci«s©"S C)8 ew aeo asd^isM ,'ie;fd'affl ^ci:^ll & 8« e^flASnslsi) 

aJeXX^d lisd^f 9v«d o* tfdgii sd;f to aaf^^l^le svi-xqefi ^XXBnoitfno^tni Aoa 

a.lnai^flstsl) jbjsuot Tpi^E, A •sanetio awouisd d-aoin s ai taao «« *©;fxu> 

tn-K^iJaf J 'liod* InLssd ba» n^nBbaotBb was odw ^e^fcwj, a be* \tllir% 

BSJcWtlsy^eci liedi al ^joe oi bad tm^xf*! tiedi LI& oi bsasintl bam 


aoproTed the verdict. We cannot disapprove under the laws 

People Vo Amore, 369 111, 245. 
and the facts,/ rne jud^en^ aglnst Frank Tomabene will 

be revi^rsei'dand the cause as to him remanded, as to the other 

defendants, the Judgment will be affirmed. 


O'Connor and MeSurely, jj,, concur. 


.3^2 .1X1 eae ^ eaomA .v elqosq 
«!fi»d3in:oT :iit.?it^ Jenlgs ^xr^&wt '^rrt \,8*0JBt afi* fine 

.x„.iiO^ ::iiJ^^1. Tifl.;;^.™ 1..L. v+ -^ UaU.-z^ii^'!/I 

^lifsnco t.LI, ,^X6^«8oM fins toixnoD'O 


ex rel, fiLLlMl F. THUMM, 

31TI.A. 460 





) APPEAL F,^^' 

) ^'^ / 

) ^^.sl^fiPERI . ..R yClJpT , 

The ThuHuiifl (William and Gtottlleb) were the o\mers of a 
one-half Interest In two certain oondemnation judgments obtained 
against the Village of Lincolnwood for certain real property taken by 
the Village under the Lofial Improvement Act, One of these Judgments 
was entered July 21 « 1930, the otner September 13, 1932. Gottlieb 
Th\mm, at the time when the Judgments were entered and now, is the 
owner and holder of a mortgage on the undivided o le-half interest in 
the property taken for the Judgments. William holds the title in this 
one-half subjert to the mortgage, one parcel of the propex^ty was taken 
for the improvement of Tuohy Avenue, the other f jr the improvement of 
Lincoln Avenue, The Judgments remaining in force and unpaid on October 
13, 1939, plaintiffs filed their petition for mandamus to compel the 
City to pay them. The defenses interposed were, first, that the 
Judgments had been paid by off-setting the amounts due on the same by 
unpaid as essments for benefits to the respective parcels of land by 
reason of the improvements made, and leaving a balance due to the 
defendant Village on the assessments of il56, 013.00; secondly, thyt the 
Village, a municipal corporation, had no funds on hand out of which 
the Judgments might be paid. 

As to the first defense defendants relied on Section 16 of the 
Local Improvement Act (111. Rev. Stat., 1939, Chap. 24, par. 715). 



^ .mi! eaiJTToo 

•Vla3Q TTSIHDTAi^ i^lOlTGUL O^IiIlS:^<T .HK 

,.d B^3ts* YJ'^=-^qoiq Iboi nJbji^^'-^o lol iKJownXooniJ to ©ssXIlV ari;?^ ^aniB8« 

8rfn«K^^L 9»fisit le an-. .^oA JnoaieTonqal XjrtoJ 9ri* nefiiur b^aXXIV erl;t 

d&iXvftfoO ,SSaX ,£X -z^^cfffis^^Jie i9iiJo ^m ,05GX 4 £2 XXuL fie^stf-n* a«w 

: jV?oii ftrfi- 5e>^9;fii« mem 9tB9tt^birl ecii asdv Bislt ^di tm ,jHMtilT 

al is^rt^ittal 1Xj5j1~S' o bf^blvlfomi eri? 00 ©gBsa^icnj s lo lefcXorf 6ns lenwo 

-■ . ai 9X;Mjf adt aJ&Xori mBlIXiV ,93^n9asJ6iit sricf 10I aei«* x;**i^<ic<l »rf* 

o ta^fa^v^otqml c\£it lot laxi^fo sri^ ^9unrA -^oitfT lo *n9ffl«Toicpnl sifJ not 

T^iiffcJeG no SlBontr &fi/! eoicl: i;i aninX,affi©*t a;tn»a;^i)rt, axiT ,9BnsrA flXconiJ 

^ii;^ Xoqfltc^ o* awfii^-finarsj Tct noi;rXtf?)q ilariir BftXil BtticTnliiXq t^cex ,5X 

■axil <ra-:tX't <e-i * bascqiaJ^fli 8©an«t9f> sriT ,aari;f xzq ot "lilQ 

Xd eoBs mii ao 9ub Btc>Jsom& ^dS soi?:J»a-llo xd btaq n^ed bssi a^fldaaJbuC 

Xd btt&l tG aXso^Kq svl.toftqas'X «ii* »'"^ scfl'ianod lot a^fnaaaae^sA Jbl^qnu 

'sdi Qi 9iif> sonaXBCf » ^nivaoX Jbna tftAaa atnaaavotqei ad* to noRjiarr 

ri* J^iW ,xX6noooa lOO.sXOja^ to a*fl«aa8«?8« ail* no •;^XX1V ^Tnabnatafc 

xloirlw to d-uo f)njari no aftnwt on bMd »nol*a'ioq^oo XaqloXnua a «9Si&XXiV 

,bt&q e<f ^xtsln a^naflsftut 9£(^ 
ntiH to 6X «ol*098 no .6©lX?i a^Cobnataf) aanetefe Jaiit ©riJ oi aA 

..dCV . :.3q t*>S .qariO tCSyX ,.;rB;t8 .voS .XXI) *oA *naffl9T0iq«I XaooJ 


The cause was heard upon the stipulation of facte and evidence taken In 
open court. On Jxine 16, 1941, It was ordered thst the writ of 
mancamus Issue, March 18, 194£, defendant filed Its petition for leave 
to appeal, stating that It had not been culpably negligent In not filing 
its notice at an earlier date because a case was then pending In the 
Supreme Court of Illinois Involving certain questions Involved in this 
case, namely Cohen v. City of Ghicago^ 377 111, 221. Leave was granted. 
The decision in the Cohen case renders tintenable the defense of 
set-off interposed hy defendant here, the court in that case holding 
that such a construction of Section 16 would asiount to an Infringepent 
of Section 13 of Article 2 of the State Constitution, which provides 
that private property shall not be taken or damaged for public use 
without Just compensation, V7e now understand that defendant does not 
contend that the defense was valid. 

It is, however, further contended for reversal that it does not 
appear from the evidence necessary funds are on hand or otherwise 
under control of defenoant with which the Judgments might be satisfied. 
Defendants wite Board of Supervisors v. Highway Commissioners^ 222 111. 
9, and De Wolfe v. Howley , 355 111,530. ihe defendants argue eameptly 
that as the petitioner alleged the Village had funas with which it could 
pay the Judgmrnts that it was encumbent on plaintiffs in the first 
instance to prove this allegation. The decisions of the Supreme Court 
do not sustain this contention. Lack of money wherewith to pay has 
been held in numerous cases to be an affirraative defense, and it is 
necessary that the defendant municipality in such case set forth 
in detail by its answer and support by pro^f facts showing that 
the payment of the Jud^ent would require the use of funds esiential 
to meet the current and necessary operating expenses of the municipality. 
Of many cases we cite only a few. People ex rel, iVanless v« City of 
Chicago , 378 111. 465; Conen v. City of Chicago , 377 111. 221; 

(Lxi'slafe tS^tJl ,81 xloii.^i .oyaai ewniAufl; 
, . . Jen il^Qii %lc....qLiio a feail ;tl *Aj(1* -^nl^stB tlJBsqqB c 

vfli s0oit«oyp fli*;fio|> SxilvXorfOi Bicnilll lo itv&O wieiqi/S 
.4>^s*vii*^ii^ a-iii.- avjBeJ .XS2 .1X1 "v^S «oa-aoiriC- lo Y3iD ,v neiloO X-^smBfl t9B«« 

. -q iioldv tfloIJrB;M*sft©Q 9i*iB«r8 9ii# %o S aXsU'SA aC 5X coi;to»8 to 
Jen Bscii dnB:&fi«^»& Jeuia^ X>Hdd'ei»Bijw won eiv «fiold"i5an»q[Hoo ;?aut 3'wcil;^i:« 

99ilwi^dto ic Dnari no 9*ta afemfl ^nja,^a»09c »oc9Jblve ed^^ aoil: liaeqqB 
» ilaXtaa ftcf cfa^Xffi ft^tfisf^ui &si^ rf©M» ii;?lw ^ms-neteB to Xo^^fioo nsfenu 

c ' j'xoeiy^sKTy g lo iwfi cS 9?X» aJnabaeteG 

*i«©0 wasMtqiiC Bits lo afioialos^ axiT ,i50X;J^^9XXB Bltii sy©<iq o^ aoaa?.? 
sj^d x^q. o^ diiMfBi^diti faxioet to iQ&d ^aolin&tatit> eldi al&iBi»t ion oi> 
Ts ^sanole^ mliAW%l'i'i& a& BtH o^ aaa«9 ave^aotfa al blsd na^cT 

.: ui? 3*o«t tcoitq ifcf ^n^qqwa J&«* i^we/ta a^i t^ XiatfaJb fti 

1 -.1^ n,fi QQ sbaul to 6sw axii* anXjirp^jTt bpSQW tmam^ul »tii to ^fioarx^^I ®^^ 
.XJXXAqXoXnwJB ad* to as8n9<5Xfi "gal^sneqo xiAaaapaA fcna ^fls-irtiifo ad* idtm at 
to xJ^XQ »v aaeXflaw ^Xaa xe S'Xqoe l twat a ttso »*Xo aw aaaa© \aaar "^ 


People ex rel. Bunge v. Powners G-rove San. Dlst« , 281 111. App. 426, 429; 
and People ex rel, Seifrled v. City of Chicago , 378 111. 479, 

The defendant argues that since there was no replication to 
its plea of lack of fluids it was neceseary for plaintiff to make proof. 
It was not necepsary. The knowledge of the material facts was in 
possession of defenaant and the burden on it to prove tuese facts. 
Williams V. People 121 111. 84, 90; Braiding v. Belding, 358 111, £18. 

Defendant further contends that the order of June 16, 1941, 
is defectiTB beofuse, as it is said, it does not find and make certain 
the exact sum of money due and owing. The order is n. t defective 
in this respect. It finds the amount of the respective judgments, 
directs payment thereon Alth interest at five per cent to the date 
of payment, which is a matter of mere computation. It directs this 
payment to be made "less all liens, taxes, and encumbrances" standing 
against the property on July 21, 1330, The determination of these 
also was a mere matter of computation and no objection was made by 
defendants on this grjund when the decree was entered. 

The Judgment is affirmed. 

O'Connor and McSurely, JJ,, concur. 


... ■> "t&?i3e8afi -j.v .. i afcfiwl to ioAl xv^^j.^ ail 
.; ti^t^B^ 5JiJ i-ii.v. «. ;.i.n©to6 lo iioisa«3ioq 

. ■ )i' i.'kt.'j i, ix.Aii t6, ajJ« ;tC^BX9 MfJ 

-sJb 0£iir Co j.Di4> ' ■ r.';i>T,-ii.. ;rfleflntBq a^oenclls 

.Titfsnoo t,t)li ,X-t8rtffaoM l>ns lonnoL ' 

317 I.A, 






This is an appeal by the iefendant husband from a decree of 
divorce entered against him In favor of hie ife, Vivian, on a 
charge of extreme and repeated cruelty. The decree also awarded to 
the wife the sua of $1,000,00 for her solicitor's fees. The bill 
was filed October 7, 1939, Defendant answ red, denying the charges 
of cruelty, nd filed a counterclaim in which he charged the 
plaintiff had deserted him without cause on the 20th of February, 
1938, Upon the trial he did not claim the allegations of the 
counterclaim had been proved and asked leave to dismiss it which was 
denied. It is contended for reversal that the charges of cjfuelty are 
not sustained by the evidence and that the allowance of '^1,000,00 
for solicitor's fees is excesrivs and not supported by the evidence. 

Uncontradicted facts in evidence are that these parties were 
Berried at Chicago, Illinois, on June 25, 1933; that they thereafter 
lived together as husband and wife until the 20th of February, 1938, 
when the wife left, claiming it was dangerous for her to longer live 
with her husband. No child or children have been bom of the marriage. 

Plaintiff testifies to two specific instances of claimed cruelty. 
The first was on Febiruary 6, 1938, when in an altercation about 
financial matters she says defendant slapped her. On February 20, 
1938, when after a somewhat similar altercation, she teetifies that 
he threw a saucer which struck and injured her, she also teetifies 
that he often became angry at her and would push her around and to a 

A T '^ r ^ 


, J^ASf UAiv: 


^ '^'iiais'iiH«i ♦« 

toeft s is©nl &i5^ii*«i ins^a&l' 

JO,000,X| -io iBua ftri* sli 

111 Jtoi ,XJ^I©t^'J ^o 
' &A I^JttJ sritf noqU «8C 

0.000,X8 io tofiBWoXX ca ©onoJfaivs sriJ x<J fcsniA^atfi tfon 

.9©flp&i. .ivl3S6ox« b1 ase^ a'toJioiloa -i 

?9i*i.«>c . o©fi9Jbiy» ni s:?0£l: fea^olfiBi^noonU 

•r©J'iA»T:'9iri* t'^rf* $MKt9 jciS^X ,32 ©mfu nc csicnXXII togaoixlD *« fielmc 
;S5fiX tX'*«*^'^9'5 "5to fltf^Og 9iiJ IX*flW ali-v bna finadftjuri b« iedd'930^ bsril 
avXX issfiol 10I eiOcis^iLaLb sjbw Jl ^r^XnisX© tJleX f>liw 9iit ntsuciw 

»,o®»lti^'vfli ©rf^r to n<socr noWT avac' nsiaxido ic :j£lcio <m .Jbcuufaxfif itrf ri^lw 
♦Xd-Xowrro ftOffliBXo lo !=i?)cfijs J a nl oitlosqs oni ot sr->t\ltBf>i fii^alMll 

^uod.^ noti&&is>SLt& ns al nariw ^SCSX ^'d ^'isijncfof nc aaw ;)"8T:lt ailT 
,J?. x'^JSjjide'i ;tfi«bfla^.:.D Q>cjaa srit aieJjBU XAivnAiiil 

Jsri* 88lli;?3«l orip taci;t.riO't^ J'XiJ ibX1«Xb ;tariweiE08 « n©;M« nadir tSP 
asiti*8 9* osXs ede ^TPii 'iojini"B rioX;liF inoujae a wvrsii 

fi Li btM bwiotB I'Sd tiauq bin {Tgns aBBoad Jia^lo ad tsisii 


general lln« of eonduct making it unsafe for her to, live with him. 

He denies such conduct. 

Plaintiff conducted a small business of her own. Defendant was 
a frequenter of a stock broker establishme it, where most of his time 
was spent in speculating on the markets 

The evidence of plaintiff as to the Incident of February 6, 1938, 
is corroborated by her sister, Frieda Levine, who testifies that on 
that date she went to visit the parties, found them together, that 
plaintiff was crying and stated in defendant's pr sence that he had 
struck her in the face* The Incident of February 20, 1938, is 
corroborated by the testimony of Mrs, Ida Tobias, who says that on 
that date she vielted the parties at their apartment and that as she 
entered she heard a oommotion and saw a saucer flyiag, which stzmck 
plaintiff • 8 shoulder. 

I^ldiintif f 1 8 business is a corset establishment out of which she 
says she derive a an income of ^18,00 per veek. She says thr t during 
her manried life defendant never contributed to her support other than 
that he was accustomed to pay the rent, and she adds tha* "he kicked 
about paying it". Defendant is the owner of a building at 836 Wilson 
Avenue which, he testifies, is worth ^8,000.00. Evidence for the 
plaintiff indicates th^.t its fair market value is flO,v:00,00, The 
evidence also shows that defendant had a brokera?re account in which 
there were stocks and other securities of a value of more thsji 
$10,000.00 in i.ay, 1938, and of more than #12,000,00 in November, 1940, 
His slater, however, claims to be the own?r of part of these stocks. 
Dividend checks were all payable to him. 

The defendant testified denying all acts of cruelty. The trial 
Judge evidently was of the opinion plaintiff was telling the truth. 
In the trial court it was, of course, necessary for plaintiff to 
establish her case by a preponderance of the evidence. The chancellor 
who saw and heard >he witnesses having, however, found in favor of 
plaintiff, the question in thie court is whether the findings of the 
decree are clearly and manifestly against the evidence, Moore v. Moore, 

, --t sTBBxtif Ji 8iiii«« *ou&noo "lo sail lAisn^a 

,tosJbtioo AouB idl£(»i> eH 

• "^^ , ■:■'{': lld&^as i«:ict<i Aooin ^ "io t^ia9up9*tt m 

nu J ./:. «VM. j.j.*>& 'u Qd» i,^alv9d a&sl'xl t's®5J'»-^a "^s^ Vi J&s^jrsotfoTioo 8l 

al ,6t ,'■' "■--•'-- '^-' * rfibtsial 9riT .eo^l driit ni leti XoiniB 

^ -it "/'-^ ^c .-jLx;i^ . « .J. ,:i-XK lo ^oBsl4'«©^ Slid X^ b»t Btotioinoo 

i 6ti« JiitiB^fiJsqA lisa;? J'js aaiS'i.yq sfi* fes^lsilT 9£Ca Bi»b tadt 

ao-u-.).. wi.iiiw tgAiy'' -■-'—■ *-- ■'"'" --+— -^ - •-'^•ri 9^ J^9*r«;rjx« 

»i .iiju£a a'm^JilsXq 

•^riittib a >ii xia ,3la©»- laq 00*8- voiio. u^ gsvliex) s4s aT[«» 

:-■;.; ' "--. t-*'--: 'iij- Y.'BQ-"0^ fesec-lfaiioOA •*!» ad JBrf* 

iiwv 9aJ ^i ii- ■on.-'" .'•*:j1 ^ni'^Bq ;ti;ccra 

, ('"'^ ;;j.. ,v j-jJ-ji5H tlal ajl ^jbiiJ a9**olbni DitfaijeXq 

r.t .: ..y nj ./uu: t o i.T vjto^cf a b^sL taAbun^Bb :iMsU avcifi) oaXa soneAJhre 

■^ «iyX^T .e tc aeiai«x»»6a rreilJo fen* B:S©c;ra dusw e^aii^ 

.0 .. ^, .1, ' ;<. . " \2X$ flad:;r e^on lo baa ^Se^X ,xs^- «^ 00,000,0X1 
,->:o.:i«? '■?!=■;.' I -awo aii? n^ Q^ BMlMlo ^isvawoil ti«>i"aia aXH 

. N .7 ;XorAX<'K[ XXi> Slow a:ioido baabtriO. 
.'i: .i£j J. '^•^'■{c .; xV'«»-6 b&ilitH9f tiu^ant^b axlT 

.rrjTij !«:.nd' 'p.cdlL'oi asw liionL-Xq aoXnXqo ad;f \o »aw x-f*n»*Jtv8 asAirt 

icXJL9oa'ino adT .eo«a61?-i 9di lo •oiiB^?.ofuq*iq js \tf aaBO lad li^lXtf»*aa 

xo «xoTat ci Jbnvo't ^lanrswocf t^xiirjofi a»aa«ad^Xv adt i!>^iBail jbna w»e oiiv 

9iU to asxil£)fill odor natiJoilv aX ;r'xijoo alii^ ni ixoi:r8o&p 9di (llid^iiifiXq 


336 111. 517; Arliekae v. Arllalcaa . 343 111, 112; Durbin v. purbln , 

315 111. App. 238, 243, 

In an attempt to corroborate the testimony of the defendant 
a number of physiclane were called, some of whom had treated him for 
arthritis, a disease from which the evidence shows without question 
he is a sufferer. These physicians gave expert evidence tending to 
show that in the physical condition defendant wag at the time of these 
alleged acts of cruelty, he could not have been guilty of the acts of 
violence complained of. Plaintiff gave testimony tending to show 
defendant was able to drive an automobile and that he was also able to 
throw a ball no twiths landing his infirmities. The chancellor was in a 
much better pjsition to decide these questijns of fact than are we« 
Upon the whole it ii evident the trial Judge was satisfied the defen- 
dant by his conduct gave plaintiff reason to fear him. He was a man of 
violent temper ajid quarrelsome disposition. While the question is 
not without difficulty, we are not able to say after a careful perusal 
of all the testimony that the findings of the decree as to acts of 
physical violence and genral conduct are clearly and manifestly 
against the weight of the evidence. Moore v, Moore , 535 111, 517; 
Arliskas v. Arli8tjti «343 111. 112, 

The question of the amount of solicitor's fees which should have 
been allowed is also one not eaay to decide. No expert evidence was 
offered as to the value of these fees, but we doubt much whether 
such expert evidence would have been substantial value to the trial 
court or this court* The solicitor for the plaintiff, at the 
suggestion of the court, filed a verified statement of the time he had 
spent and the services he had rendered to plaintiff in the preparation 
and trial of the cause. The items for which charge was made begin 
with October, 1939, and end with November 18, 1941, It shows that 65 
hours in all were taken up in preparation and trial of the case and 
other neceesazTT servioes for plaintiff in connection with it» When it 
was presented the record shows the following colloquy; 

, .S^^ ,8e2 .(?qA *III 31?' 

'■■-11 if«f*«t^'' b.!«t isciiiw to ©»o» «.d»XXi30 sinw ^it-^sioisi^Q to i^da^Li: ... 

^(^i^ 3d^ */i 8JSW ifma?>a»l9b acliltrnGO l&oi^.x^ »rf* isl ^stit voda 

■* to ^^XJtwa ii»dd ©vvsi^ ^oH J&Itfoo 94 ^t^JXsyjo to 3?on AeasII* 

fiXiAce* ■piOi5i3'a»^ ®>T«8 ttii^fliAl^ «1:o ii>«xii«Xqaoo soa^XoXv 

;. • t.' 'ic-tx5*.'jr, -i-w -u.r .^aXJXa^'ilfii 9ld'^trIb»&4&dt£mS<m XXisd A woodtf 

.' ■ J aaw 3H .ffiXri i£ ': ' - ^ t'irlifcJUXq ovb® ^oafcnco sltl x<^ ^ofiJb 

' aolifiiewp sriif eXlii\ ,a>.x.xaoc,oi;ii> aaoaXe'siiujp &!» 'seqaa* ifneXo-v: 

isainsq XtftS^a A •s»a"ba 5iej£» c;f aXde -tfoff sib ©w ,-^j^Xaoll'iiJ5 d-wdrf^iw tfcn 

10 6;Jo^ o^ a^ 0s«o*b sifsit ^o esfiifeisll: auitf #££(t xnossXiB^i 9tit XXs 1o 

■^X>a«*tiniSiss i>aa \liA®lti ^^m ioubnoo XAt-rf©s ba& ©oneXoiv XaoXax^i^ 

tVI'3 *III 3SS trfKM.^^ ♦▼ „ -3*t& (41 •QonaMv© eii^ "So ;frf^X9W wit tsRla^ 

^^:': ."TI S»&c %<ui9XX^A ^v aaaCaXXTA 
-' . 'liijiia iioiii '*io;rXaxios 10 jfiitora-fs erf? lo noitsatfo srfT 

Sill* «©asMv© iJ""!' '4E0 Oil »9biQ&h o5 ^»il» d"tfi «HO Qn L& Bi .EjowoXXa nescf 

d* oJ suXav XjBiJfiiiJ'Btfus nefKf «vj8i£ f>Xi;»G?r «one.bXvs tn^>qxf* douQ 

;.; .: ^tliJnXaXq ©riif lol lotioXIca suY ..tiwoo »Xiid^ io ^luoo 

i>x;a oiii Sii- .o ^n»»s;f«;f» &«ltXiev a bell'i ,uii/co e^J" to ccl3"8P^awQ 

filges^ 961&C1 a^w ©gtarfo riolaw ic"t aia&;tX oxfT .osi/ao j>ri? to XaXt^ fins 

SQ Jaritf ewcda Jl •Xi-GX »8X tesJatdroM atfXw £«» bns ,ecex ttetfotfoC riJlw 

? )i^i fisao »ri* to laX-Tl^ JtaiB noltirxfiqivsq nX q« n^iBtf^ e^?)ir 11m nX sixrori 

il ne*- .^ ' A X*o«mioc nX ttXJnXiiXq lot s^otv^ea x^j»aaed9is i^ad'o 

"MP. Falk: *** Another tiling, Judge, I have prepared 
a statement j.8ho',vlng what services I have rendered. It 
Is a detailed statement, I have shown it to vunsel* 
It is stipulated that if I were to testify, that is 
what I would testify to. 

"The Court; You have the amount? 

"Mr. Falk; A detailed showing of the number of howrSj, 
etc* I would like to have this marked* 

"The Court: As to the reasonableness of the fees 

"Mr, Fallc: I haven*t expressed an opinion. 

"MP, Cantwell: If Counsel says he put in that much 
time, it is perfectly all right. 

"MP. Falk: You will find it to be very fair, almost 
to the minute. 

"The Court: All right." 

Prior to this colloquy defendant's attorney had filed an 
affidavit in which he stated plaintiff was not entitled to recover 
solicitor's fees at all because of his physical condition and because 
plaintiff was able to pay her own solicitor. Apparently no point was 
made in the trial court that the amount of solicitor's fees allowed 
by the decree was unreasonable. Independently of testimony courts 
have knowledge of what is a reasonable fee in a case of this kind. The 
record is befor- us and consists of about 400 pages. The time 
nccess&plly spent has already been noted. The real question for us to 
decide is whether the sum allowed is an abuse of discretion. Here, 
again, the trial court had advantages we do not possess, and we are 
not able to say on this record that the court abused its discretion. 
Byerly v. Byerly^ 363 111, 517, No alimony was allowed, and apparently 
the trial court took this into consid ration in adjudging fcrg to 
be paid. 

The decree will be affirmed, 

O'Connor and iicSurely^ JJ,, concur* 


" ' ■ ' ■;»J3 « 

: fl el 

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, ®«u<ii ©woXXj* a««i ntta leiiJedfr si ©felo«£) 

' . w'oG «fl* tMt fricboT: sliitr JSo t*^ o? «Xds S-on 

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*«tin>/ioo t\l>h ^xl^tssBoa btiA lonnoC 


) 31W.A. 

po rat 1cm,/ L, , 

^^^--^^ppellant, ^^^-"T i^FEM. FROM 

T. ""^><r'^ \ AlCJ»51L\C0URT 


a Corporation, ^'■^^ 

y^ Appellee 


Plaintiff brought an action against defendant to recover 
$651»11, being th purohaee price of artificial leather binding goods 
sold by plaintiff to defendant. There was a Jury trial, and a verdict 
rendered In defendant's favor. Plaintiff's motion for a new trial 
was overruled, Judgment was entered on the verdict and plaintiff 

'Plaintiff In Its statement of claim, alleged that December 
28, 1936, defendant placed an order for m chandlse with plaintiff 
to be delivered as defendant requested; :khat December 2f 1937, 
plaintiff delivered to the New York, New Haven and Hartford Railroad 
Company, the me chandlse Involved, consigned to plaintiff. The Items 
and prices of the merchandise are set forth In detail, aggregating 
S551,ll. Defendant filed its affidavit of merits In which it 
averred that the merchandise was delivered to It In a dantp, wet and 
spoiled oondltioft, as a result of the negligence of plaintiff or its 
agent or agents and was wholly \mflt for use. That upon receipt 
of the gooca defendant Immediately returned them to plalritlff. Interro- 
gatories were filed by plaintiff and answers made by defendant. After- 
ward plaintiff filed a motion for a summary Judgment supported by 
two affidavits. In one of them it was set up that December 28, 1936, 
plaintiff received a written order from defendant for certain mer- 
chandise; that May 5, 1937, it received another order to take the 
place of the previous one; that about July 29, 1937, plaintiff : - 

kj;^ re. 


iK i .V 

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-. 'i ttiJciaXq tTsei ^ea X-t^^ S^wocf* *j5d? ;«no stfoiT^tq *rftt to 90*1 


received an order from defendant to ship certain of the merchandise 

and that such merchandise was shipped by plaintiff to defendant, 

"f, o. b, Lowell, Massachusetts" and the express charges were paid 
by defendant* That about September 20, 1938, the balance of the 
merchandiae remaining undelivered under the order of itaay 5, 1937, was 
delivered to the Railroad Company by plaintiff and consigned to 
defendant at Chicago •f « o. b, Lowell, Massachusetts " That about 
October 8, 1938, plaintiff received a letter from defendant stating 
that the me chandise had been entirely "soaked with water evidently 
due to flood* and the affidavit continued that all prior orders of 
merchandise had been shipped f. o, b, Lowell, alaseachusetts, and the 
freight charges paid by defenJant, There was now due 0551,11, The 
other affidavit set up that the goods were in good condition when 
they were packed and delivered to the railroad at Lowell, Maes, 
Defendantvfiled an affidavit in opposition to plaintiff* s 
motion for summary Judgment denying that the goods were shipped 
f. o, b, Lowell, Mass., and setting up that defendant had written a 
letter to plaintiff upon receipt of the merchandise Involved, stating 
that the goods were soaked with water, evidently due to flood, and 
that the condition of the goods was due to the negligence of 
plaintiff or Its agent or agents and as there was a question of fact, 
the court properly denied the motion for summary Judgment. 

Several months thereafter, the case was called for trial, a jury 
Impennelled and plaintiff was given leave to withdraw a Juror to 
file an amended statement of claim. The ajiended statement was afterward 
filed in which it was averred, among other things, that the goods 
involved were delivered September 20,1938, to the railroad by 
plaintiff at Lowell, for shipment to defendant in Chicago, (It will be 
noted that plaintiff in Its original statement of claim said the goods 
Involved in the suit were delivered to the railroad December 2, 1937, 

?ta^ lo »f)/iiBX.stf ?^^ «8CSX ,0s I8«fai9*q9£ ;^voo^ iMd'P ^i^rt&xjAsltei) ^o 

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. . iiamojaaasM ,XX9woJ ^cf ♦© .1" ©sboXxIO *b *njal)ii»lf>f> 

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t'i'o I ,; t?idiiso9G &j8oiXl£i stflO^ o^t j^aTCoviXsl) fii^m ftisa «irf* nX 6«vXovni 


and not September 20, 1938, ae alleged in the amended statement 
of olalm« ) There ie no allegation in either the original or 
amended statement of claim that the goods were delivered f, o, b, , 
Lowell, Mass« 

Defendant filed its verified defense to the amended state- 
ment of claim in which for the first time it was averred that it was 
"orally understood and agreed* between the president of the plaintiff 
and the president of the defendant companies that the merchandise 
covered \>j the contract was to be delivered to defendant "on approval, » 
with the imderstanding that defendant had the privilege of returning 
any of the merchandise found by it to be "not in a merchantable 
condition or suitable for fabrication* " That defendant was obliged 
to pay the freight charges before receiving the packages containing the 
goods and inunediately thereafter, when such packages were opened and 
the merchandise found to be in a bad condition and not fit for use, 
defenrant returned such merchandise to plaintiff. 

There were also in trrro gat cries filed and answers made after the 
amended pleadings were filed* 

Plaintiff contends that the verdict is against the manifest 
weight of the evidence and that it and the Judgment should be set aside 
and the cause remanded for a new trial. In support of this counsel 
for plaintiff ©alls attention to the fact that defendant's original 
affidavit of m^riti sets up that the merchandise was wet and spoiled 
as a result of the negligence of plaintiff or its agents. And that the 
affidavit filed by defendant in opposition to the motion for sumnary 
Judgment states that one of the issues raised on plaintiff's motion 
for a summary Judgment was one of fact as to whether the merchandise 
was in a damaged condition at the time of its packing by plaintiff. 
And it was not until defendant filed its affidavit of defense to 
plaintiff's amended statement of claim that defendant for the first 

Tfi'^mstfjajra b^bsitms edi nl b^StSLIa aa jQSGI »0S i»rf«ftd-<xde *on fins 
'to taiit^l'XQ B£it i-^ii:jJ:- ss.i fioJt#ag»XIis on al erreriT < »ffllBXo "Itio 

,«««M tXIswoJ 
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t;ssw lot *lt *on bna aot:lrlbnco b&d s al &d o^ 5rj;ot ftijtfitftarioi'^ifl 9£i^ 
•ttJttnlijIq oJ' ssifinsrfsrteB riou?^ fianijar*'?*! ^nAfiseta^ 
stit 10^ ts 9£»iisi aiewRfus 6fi.;=! fiellt aeitoiB'soitn^tit obS.^^ s^em srf»ffT 

«&slit ©now 3:gni&£^Iq fi»6iif(0r. 
aa^tlrtsff 9tii 3'anlnsB ai ^oiXviov ad* iBtit ^bnertnce ttl^iarlal^ 
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X'l&imiJB lot noiS'oia stfi^ otf woi^Iaoqqo ai *n.-j.&notf»I> id bhllt JXvaMttA ' 
floi^^om a'ttld^nlaXq jjo fieaiiirt »exr3!?l »d* to »hc ifedJ 8«>#«*8 JnsaQ^t 
s^libnflrionsffl sri* aedd-adv of a« ;fost to »no asw fii»iH§fci/t T^ataRiii « "itot ! 
,ttl:?nXj3Xq Id gniJiOAq Btt tc soli' ed? *« itolJX5«co Jbegaaaft • nl b.3w ' 

J asfiet*)* to JIvaMtta a^t .beXit *ns&fl9t«>I> Lltau tea oaw tl r 
^aiXt ed^ let Jnfibflftefi fadd" mXaXo to ^tneflielai's 6e&«woiB a'ttltfnli^ 


time Bald the goods were sold "on approval. " Coun el for plaintiff 
also point out other matters which they contend show that the 
testimony offered on the trial on behalf of defendant Is unworthy 
of belief and we think there Is considerable merit In this contention. 
But upota a consideration of all the evidence In the record, we are 
of opinion that from the manner In which the parties did business 
It appears nelth r of them had In mind the rule of law which they 
referred to as "f. o. b. Lowell" or "not f. o. b, Lowell," \ior did 
they have In mind the technical rule of law by which the goods were 
sold "on approval. " But all the evidence Is to the effect that 
plaintiff shipped the goods to defendant at the times defendant ordered 
them and that when they were rec Ived, such as were not satisfactory 
were not accepted. The first time that the rule »f o, b. Lowell" was 
sought to be Invoked or the defense made by defendant that the goods 
were sent "on approval" was at th'^ trlaj of the case. There is no 
dispute that the goods were damaged by reason of being saturated 
with water due to a flood and that they were returned by defendant to 
plaintiff. This was the view taken by the Jury, approved by the 
trial Judge and we cannot say upon a review of the entire record, that 
the verdict should be set aside and the Judgment reversed. 

The Judgment of the Municipal coyrt of Chicago is affirmed, 

Matchett, ?♦ J,, and MoSurely, J,, concur. 

filinlA.. ^^fitmcO *" ,I«vo«sqqia n»*' Mob Qiev. ai)cos 6tii btan 9mM$ 

adp Jb(ii«*x5cc USUI* ifcliiii a'i0.t?«a aaii^o *wc i^aioq oals 

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T?;&.cl»f -doirfw wi^' T sdJ ^nlff ai fcasi (sad;? to -t^il^isa •ijasqqe d-2 

:faaB'j *09ll:® srf^ c^ nl ^Bti^htr^ odi L1& jisQ " ..I^voiqqa no* i>£c8 
X'io^f^&'i&liios icn «t®w a^ jSlOi/s ^i&mt'^-Qsn o*i©« %9£tt ««i4if *Ari* J&fl* *««W 

.n ei fnsd! ,®8jao aeW" 1© 4JSi*i5J^ '^ii^ *£ Rbw MX#vo'XqqjS no» ^iifts &tem 
V- j5«te* i^tf fcaOTMiTi^n ei«w x-'^iijr *&ji* &k4 frcoXt m o* 8i/J& is^mw ii^iw 

,TL0©frc« ,icX9m80M fcna «.** *^ t.tjedo 




an Illinois Corpcnw^^lon^ 



31 IX A. 4 



Plaintiff brought laa action against defendant to reodlP^ 
damages for personal injuries claimed to have been sustained 
by her on account of the alleged negligence of the driver of one 
of defendant's motor coaches. There was a jury trial, a verdict 
and Judgment for defendant and plaintiff appeals. 

The record discloses that about 7:25 on the morning of 
December 4, 1939, plaintiff, who lived on the nouth side of 
Chicago, was a passenger in one of defendant's motor coaches 
golag to her place of mployment. The coach driven in a northorly 
direction on Stockton Drive, a winding roadway running in a 
northerly direction in Lincoln Park, stopped at Dickens avenue, an 
east and west street, to permit passengers to alight. 

Plaintiff's position, as stated by her counsel is that "As 
the bus neared Dickens Avenue, the door swung open before it came. 
to a stop and the bus Jerked suddenly causing the pl&lntiff to be 
thrown from the bus to the pavement, •• as a result of which she was 
injured. On th^^ other hand, defendant's position is that the 
driver of the bus was signalled to stop; that he stopped the bus 
in the normal way and after plaintiff alighted she turned her ankle 
and fell. 

Counsel for defendant in their brief make a number of con- 
tentions that the brief filed by counsel for pi intiff does not 
comply with Rule 7 of this court. There is no merit in these 




iTfofTs;: K 


BlORllll SUi 

sflflfttel) *aniJB38£, aoi:tQB ^siitf^swoicf ItUnXelH 

'^ed 9V^ 0^ b^satsilo R9itulsU lAaoBt&q lol ei^i^aA 

,«;l£9qqij llltfnlfilq bsu& iOAimQlob not in&a:gbul 6n 
■Jo snirtioffi s£i;f no d2:T Jjuoda ^ari;^ asaoloaiii JE«coo? eriT 
lo sAla ritfuon Qxi* no JbaviX orfw ^llirfiiislq ,6591 ^* •xscfaeo^t. 

Xlt^iiittoa » fil csvlnl) doBoo sxfT .ifn^ffiXoXqiB? 1o soelq lari o;^ 8>io3 
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^f^lin^r& sno^eiO ^:>i t-- ^i't&H.^ alooatd at aolioeriiS) \Li^diiCi 

»id^tl& oiJ ai9Sfi9SBaq Jiioidq o^ ^tfss'xS'a Jaow fin* ^see 

fjqo ^nim^ nooJb 9iii ««i;fl®vA aneiolG ^soaaii ai/cf ad* eiJ gflisjjiso iXfl©J&t"W8 JaaiiaJ, eucJ exf* f>n^ <lo*a a o«^ 

: . 9ilB rioinw 1:0 ^Lim^n a ajy •• ,JneB!S7jQq 9nt oi awo ©ilj notl awoidd" 

©rf:J Isd* si flol^laoq B*ia&ba9t9b ^batid iqsUo f>ri* nO .fiarrwtni 

atfcf 9d;f Jbeqco^a sd f^^ ;qoJ8 oJ i>sXlAnsl8 ajaw ai/cT ad;? lo tayitl) 

oliiTi 'tail bBortui srfa bft^rfaiXa 11X*fil«Xq Tod-lu bna \e9i L&Bnca 9x1* al 

• XXal fie. 
-fioo lo nedmtsa a aiLaa lelid lisri* al ioAbastab tol i^^sxiuoO 
*on 99ob tllittt-^lq lo*?: laanuoo ^cd Jb?>Xi^ Italid ad* *jBri* aaolJnpc 
9S'3il* nJ; *lisi« ofl al ftisuT ,*i«oo aid* to V sXwH d*iw ijXqaoo 


contentions. Trust Go. of Chicago v. Iroquoia Auto Ins« Underwriters ! 
285 111, App, S17; Pape ▼. Pareti . 315 111, App. 1-8; Stein v. iiidway 
Chev, Co. 315 111, App. 105; Swai n v. Hot)erg » 380 111. 435. 

Counsel for plaintiff contends (1) that the verdict is against 
the manifest weight of the evidence and (2) that the "conduct, 
attitude, remarjis, and closing arguments ofl defendant's counsel 
were so prejudicial to plaintiff's rights as to require a new trial." 

(1) Three witnesres called by plaintiff testified as to how 
the accident occurred and 4 other witnesses testified on behalf of 
defendant. John Griffin, called by plaintiff, testified that he was 
a passenger on the bus; that as it approached the intersection of 
Dickens avenue, plaintiff was standing in front of him at the door. 
"Thei^ was a sudden stop, the door flew open tnd out went Mrs. Smith. 
I got off amd .picked her up. The bus moved after the door opened." 
That he was not acquainted with Mrs. smith. Agnes Johns testified 
that she was a passenger on the bus; that "Mrs. Smith got up to get 
off the bus. Driver stopped suddenly and she fell out. Driver went 
ten or fifteen feet before he stopped, " That after the accic ent 
Mrs. Smith las put back In the bus and sat in the same seat with the 
witness: that she did not know Mrs, smith and that she gave her her 
name and address The evidence further shows that plaintiff was taken 
some distance north where she received first aid from a doctor suomoned 
by the driver of the bus. 

Plaintiff testified that she was a passenger on the bus; that 
she was going to get off at Dickens Avenue, "The driver was going 
fast. I was standing 9it the door holding tne rod. He overpaesed the 
stop. He was going at such a speed he Just dumped the door open 
and stopped suddenly. It threw me winding out of the bus. When I 
came to I was at the back wheel." 

Louis Teller, called by defendant, testified that he was manager 

.i-iZ.-r;.„_ ^^^^^' t0--E "^qA .lil aXS tiisra^ .y ggjgg ;VIC .qq/. ,1X1 38S 
,-r.,^- .Itl Ode ,S3f»do^.'/ n ijiwe ;aOX .qqA *XII ai£ ,oO .ygilO 
:t: ri- .: u::S- ■^.'^y BsiS S^Ji^ (X) al)ne;r«eo ItXiatalq not isam/oD 

r ■. ,i(rr-> a**f£»fefl©'i0.fc fto •J'iiecujgiii jgniecio Ijna eSitaaQi ^9bsstlitB 

. i**itupm oit BA Qid'gti a' ttlialBlq, o^ I&lolbulenq ©e 9tfm 

on oct aa Belllwfaeif tTrl^fli^Iq XfA Jb«XX«o •fiLisantiw-j^siilT (X) 

to '1 r --'v, ,-fr r.'-. '^f.-t' ",;h !-cu..r.wr,-.-t f.v -f-M^.-t;- ^^ Pifis X>«n:iuooo *ja«l)isojB ari;J 

^■'-- ...■ v . j.1* . - J.......*..-.., ^rrritlis nrfol. «tnafeii»t9f> 

-M,-.: .v.-,',v ? owr ^'-in>'>>'-.<Yg|qa „„ ;..,i;cf «d;f no issneaa^q & 

... . o.^. V ■.::,atbn&'J i. > -... »lijfllslq ^©iifisvjB afl«iolQ 

" ,6©neqo ice ^^ ■ r^ - -'r- ^'^" .qu lacl JoaSelq, i>£Ui llo *oj I 

|j9lti3's9:J B.u.i. <.. dmi^i/i ,xxjj.hi-r. ..-..^.A ^iJa.ft f)o;}-niai/pos Jon a*w ad JAdT 

#•«>$ c" ~- ■*'-:'g di'ifi''^ .-" " ' "'■■ ;"wcf 9nS no legnsaasq s 8«w sda t&dt 

itr^iv ir.vxiC .''""" ■ ■ ■; - ':; • '^a.iA9i)X>Ma Jb^qqod'B i«fiiC .si/cf ads' llo 


.jjfis x.oe ■* ' " " ,^9qqc;f'3 e-ri srrotKcf &Bfit aaBitlt to naJ 

' ^^ ',£iii mud 0ii;i" ai ioac tuq e«sr d*lM8 .itM 

■vn -I'vi ev:-;^ '^AS d-,o,;-3 i.)n.".- nw- xttt-s »aiM woiol Jon ill) ada iasii taaanJiv 

ns^lB? Bsw ttltnlalq t^i owcde ian;J^ii/l aoxxeMva axlT •aetl>£« fine aojui 

iffflfflua toityob 8 atO'^'i I)ijd ^Bill berlaooi ada aiadw dd-ion aonj8;faiA amor 

.aud ad^ lo -xsvliJb 9dt %€ 

ia,di ;?:;ycf ea.t no is^^aaei-'jsq -i a.--v/ exia 3* >d* £>sjt!ti^ae;f tlX;tni«X"i 

:§filos aaw i9viif> ^nl" .sunev/i. anaioia */) llo -Js^ ot jnlog bbw ada 

9di bflaaaqiavo ?>;! .5oi aii» pfilbXoii icofcada^ia 8fli£>fiaJa a«« I .Ja^l 

nsqo tool) 8ii;r £)©Qffii;6 tsul sd fifeqa « dowy ta gnios 8*w aH .qoJa 

I f):«?d*^ ,r?ud ari* 1o iuo sniijniw e« waon;? *I *YXna&6i/a BaqqoJa Bna 

*^ *Iaadw jtoAd ad;r ic a»m I oJ aaao 
■fo'^j&njafii saw ad ;f«xIJ belllSr'.^^t t.ffzabxie'iafi ^d fcaXXso ^teXXaT aiuoJ 


of the Aragon Hotel and was a passenger on the bus in question. That 
he sat on the second seat from the front on the right hand side - the 
opposite side of the driver; that the bus stopped and when it didn't 
start up "I asked the driver why he didn't start. Suddenly the 
driver got off the bus and I saw a woman lying there. He picked her 
up and put her back in the bus, " and took her on north to the Park 
Lane Hotel where the evidence shows she received the attention of a 
physician. The witness further t stifled that the coach stopped as 
usual; that a passenger got off "and then this woman" got off. 

Percy Proctor, called by defendant, testified he was a 
chauffeur and a passenger on the bus in question. That "I was seated 
at the extreme right front before the front door of the coach, " over 
the front wheel, reading his paper as the bus approached Dickens 
Avenue, That he did not notice any Jerk of the bus when it stopped. 
The evidence shows that the driver passed cards to the passengers and 
the witness testified that he signed the card and gave it to the 
driver. Objection was made by counsel for plaintiff to the intro- 
duction of this card, which was overiruled; the objection was wholly 
without merit. 

James L. Chambers, the drivep of the bus, testified that "As I 
approached Dickens Avenue, I had the signal to stop for letting a 
passenger off. I brought the coach to a stop and two ladies and a 
man got off. The second lady in getting off turned her ankle and fell." 
Pictures of the coach, or a similar oae, were introduced in evidence 
by defendant but they are not in the record. 

We think It clear that whether the door of the coach was open amd 
plaintiff was thrown or fell out before the bus stopped, or whether she 
got off after it stopped andntumcd her ankle, was a question for the 
Jury, And upon a consideration of all the evidence in the record, we are 
clearly of opinion that we would not be warranted in disturbing the 
verdict of the Jury on the ground that it is against the manifest weight 

)^a e^d. ad*, d^jBd^ ;ievi'il> 9*13" to ebltt eiJlacxyqc 

.-rrl SsA'oIq ©H ^e^e^* afii^I £}fmom « w»a I bns ax/d »ri* 11© *o;i t9vli6 

-^ -- ^. o^f di^ntciH CO 'i®d jto©^ l3jM « «,»ucf mii al s.o&d terf *uq ba& qu 

n lo .-in/,tfTq^3rj| aritf i)§>vi*oty2 srfa <i*«die ©©woJ&ivs suit s^edw X'-JoH ©naJ 

og "nBJHow aJUal* nmt J&n^" tito *08 issiiaeeAq js tAtit iLbsjbu 

^w„^„^. ^^ ^ V >.iT ,fioi*a«Mp jEsi &ssd ad* no isgnsftasq >o baa ti/st^jarfo 

.-e«fl-r. « ^f{o." CO edt to ^ool> Jnoil ad* 9i^o1p/<^ cl:«<rxl .tiigii ©fliet^xe 9xl* *b 

I/eifosc'iqqfi ewd ©d* aa loqsq aiiriT|fti£»J3ei (Xssuaw *ncil euf* 

* i^vic^a >•*• nexiiw awof sdi ill© ^^at t^fi 9oi*ca ton bib ed tsnT ♦eunsTA 

-e^eaaaq Qxi* o* alrcsp £>9aasq •xsivl-ifc erf* *sfl[* awoiiB soaeblra ariT 

' ' :^ ■*! aysjs bjas M«- sfi* fcafj:^-^© »£^ *jsil* J^itiJas* saaicMw ado 

-" ' "-.f :fclBlq lot iBBtttmo x^ Bb^x s.&v atl^iv^l^O ,i9yltb 

-i l&n'glQ erll biiMi I ieun'vk saoAo^C betU>»c'xqq& 

or:,* qoc? ; ." rIo.spo edJ *.ci5i«o«ccf '. ."'"c -Ta^naaaaq 

ooiiaMv^ Etl i!OOJjX)c -iJrji: fy'inv ^emo -i^Iiinla a ic ^ojboo 9ri* lo B©*xif*oi*l 

»6iaoQ'i an* ni *on ois x^^-^ *"cf *nfifon?>laJb t<^ 
ris nsqo a&w xiosoo oa* 1;^ icoi) erf* loiltfexiw *<ari* i.eoXc *1 Inlri* sW 
/ ■ ":9rf*orfw 1© »J&9crqo*a aud arf* frroltscf *«© .EX si to nwo-rn* ajsw ^tl*ff±*jXq 
ad* «iol xiOi*aoijp b saw tBlina lad fiofwi/Jn^na i>eqqo*!3 *1 *fc*l« llo *osi 
'IJ8 sw^Moosi «d* ni aonofilve eil* 11b to aotihiBbiaaeo » noqu biik: •T^itl 
■?d* ^tiMiuiilb at f>8*nj8tiAV ©d *on Jblucw 9W *«d* noiriqc to xXi«9lo 
;4l»w *a9llfl-^m ©d* *RniB:Jiis 8l *1 *-'id* bauor^ »d* no x^uu ad* te iolirtsv 

4. ■ ■ I- 

of the evidence, 

I 2) In support of the content ion that the conduct of counsel 
for defendant, in his closing argument, was so prejudicial as to 
warrant a new trial: counsel for defendant in his argument said: 
"The driver is operating this coach and to bring in a verdict in this 
case you have to saynthe driver was negligent in the operation of the 
coach, that he didn't do his Job, and that I was negligent in 
preparing this case for trial for the people I represent here, I 
represent the bus company and we malce our bread and butter working for 
thea^ You heard the testimony, and your verdict is going to say direct- 
ly or indirectly whether the driver was negligent or whether I did a 
good Job, but whether we. lose our Jobs makes no difference to you," 
Other complaints are made to the argument but no objection was made 
by counsel for plaintiff. Complaint is also made that counsel for 
defendant asked plaintiff how she secured the services of her 
attorney in the case. Objection was made to this and sustained. 
Defendant's counsel then asked: "Q^. Did the doctor refer you to this 
attorney?" This was objected to and the objection sustained* 

We have considered other contentions made in this respect but 
think none of them warrant the conclusion that plaintiff's rights 
were prejudiced. The Jurors are presumed to have the qualifications 
required by the statute. The Issues were simple and easily understood 
and while we do not agree with everything that counsel for defendant 
said, we are of opinion that In view of the whole record we are 
unable to say that plaintiff did not receive a fair trial. 

The Judgment of the Circuit court of Cook couaty is affirmed. 

Matohett, P.J., and McSurely, J., concur. 

*90fl©feJtV© 9di to 

r." ■ ■■-^fi.tssfiw •so a-nai^ll^efi ■'-? t^vxife eaU issdJariw yXS'oeiiJ&ai i« ■?! 
' * ■ ssnaifjt^lfe on e'^j*^.B stfct 'to© es©I*sw isiSa-Miw ^ifcf »€fot J&oog 

•jo^ ^eawroo '.tj&ild' ©fesai o«Ia el ^TnlMaKoD ^ttl^a-lAlq lol Xaaniioo ^cf 

*ied 1o 8 9Oiv»i0a ads' &»T:fifo'P& ^xXa wod ttl^rrijsXq fisiex #fi«l^«^«i> 

*&snl£^aua hn» sMt of sb&m &&v nct^OBltiO «©eAe ^t nl x&tnoa» 

al£i:? ©j trox is^at *it)*t>oi> 9xi^ feM ^p* ?5«>i[as ««ri3' X^^nisco a ' *nai»j»loa 

.•c'O ^oeo:-}Oi sill;}' ni : iiv)i;>n«*isc© «i»£f:ro J^errafcisnco «v«£ ©'• 

actdgi'c n^lJltnizLq a.ii£i^ ooisMlosoo (Wit ta&Tnsyt oreri* lo «flcn inlnj 

insbae'lfi Jl,t si?M;fv»9ve ritXw e»isfi *ois oA o« aXlfl* bam 

"^1.6 ©w rnooei sitixiw niii te waXv ffl JariJ nolrtiqo t© siis aw «JbiAa 
•XiKii? 'il^l B 'irrlPfiet ton bib til* li^Xq tarft x«8 c«t sXdftflW 
,59ffiiillB si ^;t«uco iocC lo ait'O© titf©nlD •nt lo tcaffsJbirt adT 



GEN. %p, 9707 

I A&EMDA NO. 22 




/ i 

\ OCTOBER- ^ERM, A. J6. 1942. / 

1 J 










) X 

) ' 






This action arises out of a collision between an 
automobile In Tidal ch appellee was riding, being operat- 
ed by Mabel Roseberry, and an automobile owned by 
appellant being operated by Alberta Pitzer, a cousin 
of appellant's wife, and in which car appellant's 
wife was riding. Appellee was injured as a result 
of said collision and instituted this suit against 
appellant to recover for the injuries sustained. 

Upon the first trial, judgment was rendered upon 
a verdict for appellee. An appeal in that case resulted 
in the cause being reversed and remanded on the ground 

jaa^iA HH'r 


/f^AJ.IST? •■, 

that the evidence failed to establish agency between 
appellant and the driver of his car. (281 111. App, 
205) Subsequently, the case came before this court 
upon appeal from a second Judgment upon verdict for 
appellee (312 111. App. 610). In that instance, the 
appeal was dismissed. Leave to appeal was granted 
appellant by this coiirt. Pursuant to that appeal, 
the Supreme Court has remanded the case to this coxort 
with directions to consider same on the merits. (380 
111. 435) 

Appellant denied that his car at the time In 
question was under his control or management, or 
being operated by any servant, agent or employee of 

For the purpose of this opinion, we shall refer 
only to the testimony on behalf of appellee. Six 
witnesses testified for appellee. They were appellee, 
and Mabel Roseberry, with whom appellee was riding; 
Dr. Scanlon, who testified regarding appellee's Injtiries; 
Mr. Swain, husband of appellee; Mrs. Hoberg; and Alberta 
Pitzer. The first four witnesses offered no evidence 
regarding the question of agency. We find nothing in 
the testimony of Mrs. Hoberg or Mrs. Pitzer tending 
to prove agency between appellant and Mrs. Fitzer, 

Mrs. Hoberg testifies that she called Mrs. Fitzer 
and asked her to take her to a party; that her husband 
did not know she was going to the party; tbat he did not 


. - ^ " '' '• -—''■•-■• --it Jixifl ;tnall©qq« 
j-i'u.. -j^Jiv- .- v, .. <3v.. >=..:.»s- .-^,.^y ^.L.. . ^^.iaewpoacJFxrS ■ (50S 
' -"^ i^oll)i©t* [T&qtT »tf»«sf»Jtrt fcnoseE s mortl Xaaqqjs rxoqx; 
...= ^t*on&ctBnI (Jade* «I .(0X8 .qqA .III SIS) eeXIaqqjs 

. "-- ' -^^ -' .- ■•n&iteiifl ♦cJ'ix/oo elric^ -^cf ^JnsXXeqqa 
-....-.. w ... ^ -^ ^^-- --di bebaai:x&^ nAd 'J*moli anreiq.i/S ecfrf 

(CS* .I-fT 
:ct a£i^ iB 'X-.. u-._- ^arU l>©ifia& JnelieqtiA 

»w ^dolnlqo eiit'd' to ©eoqnirq eri.^'ri 
.»©XX«qq» lo lljailQcf no y^cmli'B^i ©xlJt' oc 

,ce :i8W ■ic;erf'? .^sXXeqqB lol \5»ill*sej Rafc;s«*nc*ir 

•iB9iin !,•-:.' .■?'9cl.r®'r'7.i •gnibisj^ei lusttti^ei CKlw ^r^oIrrjS!??, .td- 
in;."-!©: . ..sXXeqqs "ic , . 

.'Tt'.?.M . >rf« cfrsBlXeqqa n© ©'ar:^ ©cf -YOttssfl svi 

F>/t»cfeirri Tftrf *ttxia IX*- 1**^'^ •^f^rf 6;t iexl £>«3l8« brw 


know she was going to use the carj that she acted upon 
her oTOi free will; that the car belonged to her husband; 
that he never gave her any permission to use it and had 
no idea she was going to the party or expected to use 
the car. 

Mrs. Pitzer states that when she was living in the 
Eoberg home in 1928 and 1929, on several occasions, she 
drove the Eoberg car upon appellant's suggestion, but 
that since said time, he had never said anything to her 
about using his car; that she did not have his permission 
or direction to drive the car, or to drive the same for 
his wife; that on the day in question, Mrs. Hoberg called 
her by telephone and asked her to drive her to the party; 
that so far as she knew, appellant had no knowledge she 
was driving his car; and that he never gave her ai^ instruc- 
tions to drive the same. 

No useful purpose would be served by another trial. 
t Appellee was unable to produce any evidence tending to 
I prove agency at the former trial, and we find no evidence 
I tending to prove such fact upon the second trial . It is 
not a question here of evidence tending to support the 
complaint, which would necessitate a submission to the 
JTory for its consideration, but there is a failure of 
proof upon the controlling question of agency between 
appellant and the person driving his car. As a matt6^3!_-- 
of law, the testimony fails in this regard, and does not 

uuqw j>vOi>-i bac. ^afiii {'Ui^ ju-. ^ ^^j OCT gnlo^ B«w fltfla woral 
jl>fsarf8»/ "" '- •- "^< lerf iBo ®iict ;tjaii;J l-CIiw eeml. fflro ;x©ri 

srfe ,e«ciai80Ji>o Lartevea /:o ,9261 bsm SSQI xiJ oaorl g-xoCfoH 

nolBsIif^eq bM svajtI ;^ofi 51Jb ©ris d\ad;t jibo bM gfliau di/odB 
•xol srass 9Xi:t «t.cid oit *io «iao ©xtf ©viii) o;t aolioetih 10 

(^rfiaq ttfi.'i' od" ten ©Ti^ oi 'i»ii ^e2£ia« ba» ©aoaqslei to "leri 
eria ag^elworof on fwari ^rtalleqqjs ,wer£2l oria sb i«1 cq ctartf 

.%)ta& aclj dvi:*ib o;f enol;t 

o;J gxiJL&ne^t eone£>lV9 '^nfi ^'nsboiq, pcf ©Idaau a«w aellsqqA 

aojueblvd on l)fli:'i dw l>n« il»t%!i -i^crxol ©xfi eta ^^"95* ov^OTiq 

si ^^I .iBlicf bxtoo^e ed3 rioqw ;Joa'l xtox/e evciq o3 ^IJbioei 

9ri^ ;tioqqi/a o;t jyilficecf eoneJblve to encdJii iioiiei^xip & :ton 

8ri3 ocf noiBSimdjLTS z ©jiBtfiaatoen Wifow cfoiriv t;^iiJtAXqmoo 

lo QtisLiAt B Bl Bi&tii iu<i ^aol^tMtahlsiaQO nil lol vml 

aeaw^fsc' \-0ne5ja 7.C ooid^Eej/p ^nlXXoTiJtnoo ©il;J iioqi; looiq 

.rMJiJ^BjEci fi e/i «t^t' Hid jtifjlvlitb ooai^q^ •xiJ £)n^ JcBlIeqqia 

Socx 89CvL> Las ,ijn:iset[ sJtxfif nl bIIjbI Tj^fioralcteact eiljf ,waI lo 

tend to prove agency. Accidents such as the one involved 
in this case are to he regretted, but sympathy for the 
unfortunate victim cannot justify a departure from well 
established rules governing liability in such cases. 

The judgment of the Circuit Court is therefore 

Judgment reversed. 





317I.A. 536' 

GEN. NO. 9814 

AGENDA NO. ^ik'"' 


OCTOBER TERM.^". D. 1942. 

C" CTs 





a Kpniclpal Corporation, 





This is an action by appellee to recover for 
damages sustained by reason of falling upon a side- 
walk in appellant city. Appellee was a passenger 
on a bus from Mason City, Iowa, bound for Valparaiso, 
Indiana, the city of his residence. The bus station 
was next door to a restaurant and cigar store. When 
the bus stopped in Elgin, appellee got out and enter- 
ed the cigar store to make a purchase. He states 
people were standing in front of the entrance to 
the store, and that he passed aroxmd them and enter- 
ed from an angle; that upon his coming out of the 




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^ Ajjai^A 

lol levooe-i od- oalXeqqa -^cJ c-oHob as Bi. aixlT 

legnas'^Bq eew esIIeqqA •Y^-'^o :tni}ll0q,qa ni il&v 

,oalaiaqIaV tol fmuocf ^awol tX-^i^ noesM flionl axrcf b no 

noicfsc^a eircf exlT .son6.&iBai atxl lo ."^ctJto erfcf ^BXiBlbcI 

-i«c^a6 bns cti;o iog esIIeqqB ^nlsIS fi± feeqqois exrcf erfi 

a©;lB;t3 eH .asBrioiyq js ©jtBtrf ocf oioOb isglo extct &» 

odt 9onai.7ne ax-W lo ctnoil, nl snlfiaiBd-e aiew alqoaq 

-■xsctn© fuiB m©ftt fim/oiB ijeasaq ©d ctBd* baa ^eiocfa 3rt;t 

sdrf Io cJiTo 3nlinoo aid iiocf<r ;fiiri^ ; 0X508 na nio«il b© 

store, he stepped directly out upon tlie sidewalk and 
Into a hole or worn out place, which caused him to 
fall whereby he sustained injury to his ankle as well 
as other bruises. He proceeded on the bus to Chicago, 
where his wife came after him. He was confined to the 
bed for ten or twelve days, and thereafter to the house 
for about a week before he was able to resxime his duties 
Trial resulted in verdict for |500.00, in favor of 
appellee, and appellant appeals from judgment rendered 

Two errors for reversal are assigned. First, 
that the verdict is against the weight of the evidence; 
and second, that the court erred in admitting in evi- 
dence plaintiff's exhibit # 1. 

With regard to the first contention of appellant, 
it appears from the evidence of the Mayor that he 
knew of the condition in the walk and had discussed 
the matter with other members of the City Council. 
It also appears from the evidence of a shopkeeper, 
that he had talked to the Street Commissioner about 
the condition of the walk. These things all occurred 
prior to appellee's injury. The walk at this place 
was constructed of stone slabs, and it appears from 
the evidence that the slab In question not only was 
old and worn, but was loose due to lack of proper 
support from below. The evidence on the part of 
appellant discloses that the slab was worn out from 


1 15. ■ i.foc^6i)a exi \;cJ'c''i.exiW IIbI 

orf ,&Qni:lnoc' a-. . tsiri leiJiA aiiwc eliw Bixi eiadw 

o&ijrpd ©dct Qd' «ie#la©'xaiL;f ^fxa ^axs^ Qylewd 10 ne;^ 10I be6 

benobn®'! dn©a<^3^w(, jao^l elaeqqs ^nalXeqq-B bna ^aoIIeqqB 

♦ aoe'i ad;t 
. r^nsiaaje e.i^ JJBS'isvei nol 8IO110 oWj? 

. ■ Jidxo s'lllifilBlq eons, 
t?jrLai.ig»qqe 10 r;ioicr0.©jr(oo -jvix:. oiiJ oS l)iJ6gai xi;tJt7>' 

r ;jB£[d' io^bM ©itt lo &Oiio£)lv« sxlcf wot:! aiJ36qq;i c ^ 

.ooBSiJoaif) BjBiC Jjjoa ^^IJIW «£l.t . ' --iilfinoo exld lo trerol 

. ^ '-oniJoO Y "' '" " '"^ "■^' a«it^o'.;iJ.,> -laii^o xlilw lectcfjapi exli 

ie03fqon8 is xo t. oiiaMve edif moil B«xj36qqjB oalB dl 

j.joda/?©liolaBliawoO d'eei^fS ©xi:t oS i)e3ila^ Sari ©xl d-fixld 

J5>©^ifjooo Ilia asnlxf^ ©a©xlT ,^lm ©xid^ lo nolitixioo Bd;i 

©SBlq aJ^ ■+ •' - ^!rr..r -.r, :• .r;v^,rirf !> ? © 9XI©qq« oU io2iq 

iffl3*xl si£w^M.-,5 "o. ....: .. c,..w.. * lo liactojj^iBnoo. 8BW 

lo i iBq ©4J no si^©&iv# dxi: — I^^ ;jo11 iJioqqira 

I useage at the place wfaere appellee fell. From a 
It review of the case, we are not of the opinion the 
verdict was against the weight of evidence, but 
amply supported by the same. 

With respect to appellant's second contention 
that the court erred in admitting appellee's exhibit 
#1, will oh was a photograph of the stone slab in 
question, we do not find the abstract supports such 
contention. At the conclusion of the case on the part 
of appellee, his attorney offered the exhibit in evi- 
dence, to urtiich offer appellant objected, and the 
objection was sustained by the court. It then appears 
that counsel for appellee offered the exhibit for a 
certain, specified, limited purpose, to which offer, 
appellant objected, and the objection was again sustain- 
ed, whereupon appellee rested. At the conclusion of 
the evidence on behalf of appellant, the abstract dis- 
closes that attorney for appellee again offered plain- 
tiff's exhibit # 1, in evidence, at which time attorney 
for appellant asked leave to recall two witnesses. 
These witnesses were recalled and examined by appellant 
with respect to the exhibit. At the close of this 
examination by appellant, no cross-examination appears 
to have been made, no further offer of the exlriibit 
appears to have been made, no ruling of the court ad- 
mitting the same in evidence appears to have been 
made, and no objection to its admission appears to 


.entfli ©fid- x<^ bei^toq^quB x^^W^ 

9 ©xlcf fjensllo Tcon'xocl;ts elrl ,o©Il8qqB lo 
-orf-setcfo cfr£i8ll«qqjs tsllo xfolitwr o;f ,eon»I) 

:i# £>eie'llo ©aiJ[.E9qqs -tol leenxroo cfsacf 

^leTio iiolrlw OCT ,©8oq«iaq 6e;JJtatlI ^Jbelllbeqe ^ntB:f leo 

-n. .Isga bjsw r£old-oe{,do exH iters ^ije^toe^tfo d-osIIeqqB 

.':sqqfl floqx/aieifw ^be 

-nifllq aeie'l'io niags ©eXxttqq* ^o.l ^©moJd'B iBdi aeeoio 
^sn^c ^eonsbive fii ^1 % cficfirfxe 2»11W 

bsjfEJS *n«Il9qq£ lol 

si-saqqis iSfcxe-aeoio on «ctrtflXIeqqj» y^ noltBnloMxB 

-b'i riUlxiS^ or. ^9h&m n&sd evBrf o;f arraoqqs 

oi eiA©qqB noiBBlnrbB actl oi .-xid.:)8[,tfo on boa »8fi«ra 

have been interposed by appellant. Therefore, the 
second contention of appellant is not open for review. 

The additional abstract filed by appellee is not 
considered necessary, and the cost thereof is not to 
be taxed to appellant. 

The judgment herein is affirmed. 

Judgment affirmed. 


arii , 9'xo'leisilT .^fnallaqqs x^ fteaoqisctxil need evarl 



GEN. NO. 9843 


Abstract 3i;r'I.A. 536^ 


X AGENDA m, 21 1 




OCTOBER TEM, A'. D. 1942Z' 

TODD, DECEASED/ "''^'^is., 






/ / 



This case was before this court upon a previous 
appeal from judgment rendered on verdict In favor of 
plaintiff -administrator. The judgment was reversed, 
and the cause remanded. (303 111. App. 89) The facts 
are fully set out In that opinion. A second trial re- 
sulted In verdict for plaintiff-administrator. The 
court granted motion of defendant for a judgment not- 
withstanding the verdict. The administrator appeals o 

The daughter of plaintiff's Intestate was the 
only witness on either trial who testified for plaintiff 
concerning facts connected with the accident. Her testl- 



.or< .T-rsD 








^i:0TA.f?r2I»3:i5A .CrrroT .1. sooeofl 

. t at jja^^ ■'^i' ii aHi' '"^o 

:j ,aaoT 



.aajja'i'iA \ 

Buotveiq B cioiu d-iuoo elrfd" ©loleo' asw aseo e2x{T 

lo'^ovsl ai ci-ol5ie\r no beicbrts-x u^rxexngby^ nroil Iflsqqs 

^fceeievG'S saw ;Jflsiiijjbjj{, ©x{T .T:o:tei;fal.rilxnJbf<-lli;JnlaXq 

BioBl arlT (96 .qqA ,111 SOS) .bobrtsccsi ©suso ori* bus 

-91 Isirct biiooee A .noiiniqo i-a-M ai it}o i-ae, "^IIt/1 eis 

odT .lod'sid-ainirabs-md-frlalq lol'ioJbiev nl beilue 

-d-o.n: rfno^TT^ft^'t ^ 'xol Jitnebneleft to nolctoxsi fcocfnai^ cKtroo 

♦ aXaeqqs •xod'sidaliilxrtbe ©rlT ,:folbi9r sr!;* :^.n:lbne;tejrf;tiw 

llld-xxlslq lol bellJ::}-e9ci' oirfw'Xali^t leridls no aeen^tw \Lao 

mony upon the second trial Is substantially as It was 
upon the first. She states that on the evening In ques- 
tion, she accompanied her mother to appellee's store; 
that she and her mother visited this store frequently, 
and v;fere "both familiar with the operation of the doors 
at the entrance thereof; that the time in question was 
on Saturday night and a few minutes before nine o'clock, 
which was closing time; that when they caiue to the entrance 
of the store, the swinging door to her right was opened 
inwardly, and that she entered through this door; that 
she did not notice anybody about the door or holding it; 
that she preceded her mother through the door, and con- 
tinued toward a merchandise counter intending to make a 
purchase; that as she reached this counter, she turned her 
head toward the doorway and observed her mother in the act 
of entering the store, and the swinging door returning to 
a closed position. She states that as the door closed, 
it struck her mother, causing her to fall, whereby she 
sustained a broken hip. 

In the former appeal, it was held that for the doctrine 
of res ipsa loquitur to apply, it must appear the instru- 
mentality causing the Injury was under the control of the 
defendant, and the injury caused by some act incident to 
such control, and of such a nature that it would not have 
occurred but for the defendant's negligence. It was further 
observed that swinging doors such as involved in this case, 
were common to such places of business; that the operation 


-a©ap ill jjinlnsve ©4^ no ied:i sects js aria .tfaill sxfct coqu 

jsi isrf bdinsqjttfooos erfe ^noli 

tY-^d'rrawpe'rl 910^-8 siifd' biftd'lsl^ leifoOTir neri bnB erfe d-crid' 

aioofe ejrid- lo froi;^te«xeqo ©d.' ■ • a^Iicist rictocf eiew baR 

aav nolieoup nl ©afld- 9d.& ■ ©"isrict eoneictne odi c^e 

jSIooXq'o anl0 ©q:«l©cf e»*i;nli?f wet b baa &d^ln "^etitr^tsS rto 

soxisictne erf;:f od Qjribo Tjericf .aeifof #a4^ jqihIj. gnlaoXc eaw doixiw 

boneqo aew cfrf^li •jexi od' •xoofc ^ttl^atxfB ©riv ^aioctB add" lo 

rfsrlrf' j-ico^ atrict fIguo«ricl'' be'ia^it*. friE iadd fcns ^vlbiewnl 

i:ti axiiblori lo 10015 axi* *tfod» ^boef-^n* soJtcton ^<j£[ 616 erfe 

-noo &XU8 ^toob sxfd- xlswo'i'^^ i9id^Qm i9xi befeeoeiq wia d'srfjt 

E eylsm oi ^albcid^nt 'tacfnwoo ealba&rloiem s biawocf bewnld' 

lerl beatui arfs ^isd-nuoo sirid" bsriosei adz zb darict ^eaBrloiuq 

u5S 94^ stl teiiMji.osi lexf beviaso'o b££« ijewioob erfit biswod' beeri 

od Siiirri0d6i 100b grus-cilwa sd;i br.a ,50:0^3 arid sfllnsdao to 

,besoIo 100b dd;f ae dsiid aadsde eilS .noldleoq beaolo s 

axis -^cfeiariw ^IXbI od led gfiJjsiiBO ^isiidom ted sioinde di 

♦ ciri Aeijloia'' s benladawE 
enlidoob arid 10^ darid bL&d asv; dl ,Xe3qqfi le-Wto'i sdd nl 

-yrrdanl arid laaqqs dawra dl t"tXqqs qd itrd-lr/poX seql eei lo 

arid io XoTdnoo ©ild •jebrrti 3.ew "^lutfil orid aaXei/eo •^diXsdnem 

od dnebxonl doe etuoz -^cf Jbeeuso "^ir.ffii arid fcns ,dnabn©l&b 

avsri don bX0ow dl dsrid aitfdan s rioos I0 brte iXoidnoo rioue 

laridiul 2BW dl .©ortsslXsen s'daEbnelob erid lol d-ucf beiiuooo 

,©Bflo eidi al bevLoTal as rioue bioo5 anlanlwe dftrid berieecfo 

noldBieqo erfd dorid ;8S©nlp.c/cf lo aeooXq riawa od nofflmoo eiaw 


thereof was not v;ithin the exclusive control of the proprie- 
tor of the store; hut that persons using them took a distinct 
part in their operation, and were chargeable v;ith the exer- 
cise of due care in the use thereof. Entrance doors to busi- 
ness establishments, although mechanical in operation, re- 
quire a manual manipulation and commonly depend for such 
operation upon the persons using them. Injuries may occur 
in the use of such doors, either on the part of the person 
injured or from that of those using them at or near the same 
time as the person injured, 

\Miere principles of law have been announced on a former 
appeal, they cannot be questioned upon a subsequent appeal 
in the same litigation. Pease v. Ditto, 189 111. 456, 463; 
Seawell v. Oregon ^,hort Line R. R. Co., 278 111. 122; City 
of Chicago v. Lord, 279 111. 167. In granting the motion 
in this case, the question before the trial court was 
whether there was any evidence on the part of plaintiff 
fairly tending to prove the allegations of the complaint. 
McParlane v. Chicago City Ry. Co., 288 111. 476, 478; 
Beckett v. Woollworth Co., 376 111. 470, 475, 476; Peters 
V. Id, 376 111. 237, 241. Negligence on the part of the 
defendant is not to be presumed. 

No useful purpose would be served in this case by 
another trial. Frequently in cases of this character, 
upon e second hearing, the testimony raay not be the same 
as upon a previous hearing, but in this case, there Is no 
new testimony, and that of the daughter is substantially 


~6i:iqo : ^on sew loeisdo 

-Ist/cf 0-^ ^Uffe^fff 'ISC Buh ic S3lo 

30xxi«do9«r xiauoxiiXs ,8d'ii5KXGrieiXcfevjef.> gasn 
xiOi Ii/qlcafli XfttKiflifT B etii/p 


•^10 jS^ .XXi S?S .-■ - . , =■■■"' -, - .-- IXswiSQ-^ 


ilXd-:.- -s^sr 

jtv .iJ.I 88S ».0j .Vi -^.J'.. ^asXiflloM 

a-Taoei jcj-, .:■ .'''■' ."' ■■■':" ., ' :ioio-;.'j.ioc.? ,v ctd'eiloea 

®jcii lo ^T:3<i. ,f?-ia i^o c-or'^;; "■"" '"" " "" .'^ . r 

Wisa ©fi* 6cf ion ^is'u yiujid^e.?::^ ""'' • .::n'j-j'^t a noqu 

on aX 9t®dt ,asao aXrfit xii d't juiveiq e noqt/ es 

the same as upon the former trial. She states that she 
and her mother were familiar with the operation of the 
door in question. She passed through the door and pro- 
ceeded to a merchandise counter with her back to her 
mother. Upon glancing around to look for her mother, 
she observed the door v?as in the act of closing at the 
time when her mother was about to enter. In view of 
this evidence, we do not consider the trial court erred 
in granting the motion for judgment notwithstanding the 

Judgment affirmed. 


aelXJtxfiBl Qiew leriiom 'xsxl bns 
~c' ■ , oJtiJ'Beap al 100b 

iDnoiioiQm s od- bebeeo 

-Ja. SiLia - Slid" xii siii," loob eifu^ fteviescfo exfa 

■.;.o vje'r' , ■ ' ?.'■ tfypJoTi: isri neiiw efldL::^ 

ba' j'succ iai--r: ^ JtXtnQ. ^oonefiiTS 5lif;t 


317I.A. 537 

GEN. ifO. 9846 


0^ I 

IN IhI appellate court op ILLINOIS 



vs. : AI*tEAB^.J'ROM THE 



...-'-''IPPELLAI'JTS . ) 

/ / 



This case was previously before this court, and 
the judgment reversed and the cause remanded (309 111. 
App. 24). There is little change In the testimony upon 
the second trial from that presented at the first trial, 
so far as the essentials are concerned. The case grows 
out of a collision between appellee's automobile, which 
he was then driving, and one of appellants' trains. 
The accident occurred shortly after six o'clock in the 
morning, at a street crossing located in the factory 
district of Moline . 


■ y V 

( V 



.L .^. ,MAira'5UH 
x)nA ^;:fiJj-oo siiricf siolecf ^laxrolvsiq bbw ©bbo eirfT ' . 

noqu T^nocilctaei 3il;t nl •S»«diS- •Ict;JiI al aiorlT .(:^2 .qqA 

,lBlt^1 cJsiil erict ;tJ3 b^y no &6*T.q, iadi moil lalirf Jbnooea 9di 

BWO«xs ©89 ©r{T ,£)8nrr96jaoo sis elBir^neaB* eiicf aa isl be 

. anlaid- 'ajtnsXIeqqa lo ©no J^na ^gnlvlil) aecf;* eew ©d 

e.ict nl ifsolo'o x±e lOctlB ^Iiiori« fisini.vooc inoJbiooa oriT 

^lo^ojsl srict al be^HQoL giileaoio ;te3i*a s ^s ,snlm:oci 

.enlloM lo ;tol«xcf alJb 

The testimony of appellee discloses that it was 
his habit to use this crossing in connection with his 
work, and that since 1927, he had passed over this 
street crossing five or six times a day in connection 
with his work. He states the sun was shining; that 
the windows of his car were closed; that he did not 
hear the train; that he did not see the train; that he 
was driving his car in second gear at about ten miles 
an hour; that the street was paved with brick; that he 
continued at the same rate of speed in crossing the track 
in question; that he never heard or saw the train; that 
he does not remember its striking his automobile; and 
does not remember being struck by anything. He says that 
he knows nothing of the accident and remembers nothing 
about It. He states that he was acquainted with the cross- 
ing; that the windows of his car were steamed over but 
that the windshield was clear. He testifies that he 
looked in both directions as he came upon the track, and 
saw no train. He fxirther says that his brakes were in 
good condition, and that at a speed of ten miles an hour, 
he could have stopped almost instantly. 

We find three other witnesses for appellee, whose 
testimony throws some light upon the accident. The wit- 
ness Adams states that he was In the street over which 
the train was about to cross; that he saw appellee's 
automobile approaching the crossing at a slow rate of 
speed; that he saw the train coming from the west; that 


3B\^r Jl •:^Bd^ a8soIoaI£> esXIegqjB lo •^noflilies;^ ejiT 

&hi dSl^T ■not&oennoo al gnlaeo'io sMi 661/ oj ildad zld 

siii'd" lavo beasBq bBd &d «V2QI eocts isdi bn& ^-jfiow 

nold-oerUiC avll snxaaoio ieei'^B 

itarid- j^Jtnlfia 8j3w nire erfd- e9iJj8;te eH .sf^ow aid diXv 

don i)i-b a;i ctAild jli^eolo eie's- nso airi 'to etvotalvf sdi 

ad -^i-sd-j ^nlBTca sxlcf sen ctor. £)i;f> sd saxicf j'filB'ict exi;t isaxl 

aelirs ned- d-x/odB ctB ifisg finoS*^ nl 'xso exil snivliS asw 

Sii ctBiii :2ioxicf ifdlw f)9V;; irfd^ ctsrld jii/OjcI ctB 

£)nB i3Xidoxno;tj:;a 3i:i 3ii±3ll'3i:;:fa bj-I •xecfmsKtei cton aeob ad 

gicxliliiaH BrcedjaeiHei ftrxij iaebloiyB &di to gnlrfctoii aworat arl 

■R.rO'iO Siid- ricrliAr Jbod-nlJ8i/pss sfitv sxl c^add- ae:J^tfa eH .cM d'uods 

o'jLTCf tevp jjeiiieeoB s'lew 'tbo aid *io ewoxjnlw arid- cfBrid IS^^-^ 

ad #a4d: ,aei;1ii;;*secf ©H ^laelo siiw .^leidapiiiw «d-;t ;:t'«di 

i)n3 ^3lofli:f edcf noqw extiso arl qjs anoiioeilb dJod nl £)e2iooI 

al 31SW aesfflid sid^sd^ e-^Be tedc^Tj/i &R ,alfiii on wae 

,ijjOd nB asXxiti nee lo iieeq : .:sdd bas ^nol:i Ibnoo 6003 

.■^IctnBct8xi4 oeofltilB beqqoctB evBd bluoo ed 

©Eodw ^eelleqcfl loJ. BeeeejCid'lvr lexldo oeodct boll sV, 

-d-Jtw ®riT .:f0.©i)looa 9d;t aoqu ^id^li £*mce 9WO«xdrf ■^noiaiia*^ 

rio.ldw levo c}-®ei;tE edst xii aew sd ifidc^ ue;ta;JB anis£iA aaen 

a'esXIeqqii wsa 0d dBd:t tsaoio oi cJirccfB esw n^jB-ict ©ri;t 

'to ©cfei wole a cfjs ^iaaoio Bi^ ^^IdoMOtqqa^ ©lidofnodus 

d-Bd-:^ ;ctB©vir add moil ^Icroo xxle-^;! 9dd wjea «d ;i.adS {beeqfl 


It was at 13th street when he first noticed Itj that he 
had started west across the street when he heard the 
noise of the engine striking the eoitomobile. He states 
he saw the engine hit the car, and that appellee's car 
was driven against the cirpb by Hlckey Brother's Cigar 
Store. The witness did not return to the scene of the 
accident but proceeded to his work. He estimates the 
speed of the train to have been fifty or fifty-five miles 
per hour. 

The witness Reinhart was in Hlckey Brother's Cigar 
Store on the southeast corner of 15th street, and the 
street Yihlch intersects it south of the tracks. He states 
he saw the train approaching the crossing from the west; 
that he heard the whistle; that it was then about 11th 
or 12th streets, and that he watched it vmtll it reached 
15th street. He estimates the speed at fifty miles per 
hour. He did not see appellee's automobile prior to the 

The witness Emerson worked at Hlckey Brother's Store. 
He was in the store at the time of the accident. He states 
his attention was called to the train by Its vidilstle; that 
he looked west and saw the train coming; that It was then 
between 13th and 14th streets; that he thinks the speed 
was from forty-five to fifty-five miles per hour; that he 
paid no attention to the train after he heard the whistle; 
that he heard the crash when the engine struck appellee's 
car; that he looked through the north window of the store 


o'i i.' 1- -n ;*B«Ell erf, rmdkf d'&sncfe dSBX is sgw *i 

3rf .«rf neil^. cl'^eid-fi effcl- aao-iojs ^aew bec^'xads barf 

5.,eri 'Hcwr^jja. Arf;*. -^irjtiwJB «0lj|flE« iiri^ 'to eeioa 

':38 ©££*. o::f mwiei (forr bib »E©a^Jtw ©dT ,«io;tS 

Bs,; . i'^efs^^nl doldxf c^ea-stfe 

j^ee- ■ i'l^ ©ricf was oa 

fiiSiX ,#:fjxxrB j;*E^.c£^ 8.ew si -JMti tsM^iflW end ^t-ftoti ed rfsjU 

voi»i/» a»ei»' ae ton bib ©H .rti/ori 

. JnsblQtm 

.6io;y^ &»«!c©n;*o<5a y*''^^-^ -^ ^-® bojttcow noeisma es^nc^lr ©xiT 

serf; ^Mot>a ed^^t lo eml;^ ©.cid- ^b eioda ©xict rs2 bbw ©H 

ojsxlct ;©X;faicar e;*^ •^#v«la*Kt ©cU* o;t l)6lIso ea^i'^ noi^n^tf^a alii 

fi©rf# asv' .>o nifii^J ©!»i>tf »«& finui *b«w Jbe^iool ©jd 

©rf ;*«r£3 ;4JJX>£i -x^q bpbXIib »VIVt^'ilt <** ©vJtl-^^tlol {noil jSflw 

iel^eiifiir ©rfi J^tflOil erf teith nl»^;i ssH o* nolJnetfcfjB on il)lfltq 

a'oeII©<:iqs :>Iok*i*h ©aJtsae Oiftf nari* arict i>TB©ri ©rf *arf* 

and saw tho automobile coming across the street where 
It stopped against the cxirb by the store; that he went 
to the front door of the store and saw appellee lying 
on the pavement in front of the car; that he then called 
the police station for an ambulance* 

The above briefly but fairly presents the evidence 
on behalf of appellee bearing upon the accident. 

On the part of appellants, we find seven witnesses 
who testified directly concerning the accident, Dempsey, 
the trainraaster, was riding in the cab with the engineer 
at the ticie* Ee states that the bell was ringing and the 
whistle was being sounded as the train approached 15th 
street crossing; that the train was travelling between 
twenty and twenty-five miles per hour; that he saw the 
rear end of appellee's automobile struck by the ri^t 
front comer of the engine; that the train was stopped 
between 15th and 16th streets; that he went back to the 
scene of the accident; that the train was pulling fifteen 
coaches at the time^ and that to have stopped a train of 
this size, going at a speed of fifty to fifty-five miles 
an hour, would have reqtiired from 2600 to 2700 feet. He 
states this train was stopped in about 650 feet* 

The engineer states the engine was eight /-three feet 
long; that the bell was ringing at the time, and was 
operated automatically; that it liad been ringing constant- 
ly since he pulled out of the depot at Hock Island; that 
the wMstle was being blown constantly; that as he approached 

©i«.i?s-' ^-siet^a erf.^ seo^^s ^limc-S) Bll^osmiim edi -n&s ban 

Snl'^X aelloq-rrft ??b?« boa eno;^a swfi lo 1:006 ^ncntl edd o^ 

ijellao nost;^ ©/:.:. ;/--:i®o smIcT "io ^«c*!f*' if J: #fl©K©VAq. i»rf* no 

♦ sanalirciks toi^taa^B daiXoq ©rtf 

♦ 'i-'ftblftoj» od;?^ isoiji; g;«i'»a©a «eIX©q;qa lo tCartod ao 

•xe^iTlgiu .' hr €mo 9SUt nt 311JL&I'? ..»;J-aj|fii0iBM* ©ffct 

exiif ftne snljjn^'TC r-sv? Xiao' Sffcf i*«j# co^^i^e 0I: ^tiSilS acfct c^a 

fi©9w;^©cf 3iiZXX®va»j::J aaw laJ^ai^ . ©«£* Ssisti trjniaeo'io cteettia 

rf/fel'i ©iitf -^ al»i«Btil 'eXlcfofifo^tm fi'»ssXX»a.r>- "^.o £>;-se •saiei 

•ri. u ©«'!.:? e xSdX £»«« rfcTSX aveintacf 

aseitlit v^nlLliSii aaw aXfi'ict arid 4Bil:t iin9lilooA eOi lo ©ii^iyB 

lo ntBii a boqqotfa ovad o^ :ffliritf 6j.»b ^©jitid' erf;* tf* aexfoBoo 

aeXiflt »ril*-^tll od -^^i^lll to i5>e»qa a ;fa sitlos ^aslc «JW* 

ova o* OOdS fflto«a:l JS>«'iXiip»'i; avari ftXx/ow ^tsjod nu 

0Q& ^ifo€a a.t bB^q^SB saw til&ti alrt* aaitArfe 

iaa^ aaii3Ut-t*^J^9 a*w ®«X?if»<» o^ aa^lacJa nraanXgne acC 

aaw- £>rta ^&ai.U axi^ ;ta ^il^ol's aaw XXa^i efi:} ^Ad;t (srtoX 

-:Jna;*Bnoo ^al^^M aaacf X«»rl tfl ^arl,^ |'^XXaoXrfaiflo;?«fi X>aJai©qo 

d-Ailt {lAixaXal 3laoH Ha ioqpb edU lo ^juo bellifq ad aoittla xX 

barloBO'tqqa ed aa ;tax£ci t^Xd-naJonoo mroXcT 3ii£©cf aaw altfaixlw arW 

15tli street ciHDsslng, the train was travelling about 
fifteen miles an hour; tliat he was not then Increasing 
the speed but had shut down the steam as he was going 
to make a stop at the 17th street crossing; that he 
also had made a slight application of the brakes In 
order to slow down the train for the 17th street stop; 
that as he came upon 15th street, the fireman called to 
him, when he applied the brakes; that the first he saw 
of appellee's automobile was when it appeared upon the 
south side of the engine, and was struck on the right 
rear portion by the right front corner of the engine. 
He says he saw the car pushed clear of the train and out 
into the street. He stopped his train, went around to 
look at the front of the engine and saw marks on the 
right side of viiiat Is commonly called the cow-catcher, 
made by the Impact between it and appellee's automobile. 
He says the sun was shining, and the track was dry; that 
the train is what is called the Golden State Limited, 
and ^Yas pulling fifteen coaches at the time; that he 
could not have reached a speed of fifty miles an hour 
with that train between the station in Rock Island and 
the 15th street crossing, because the engine did not have 
the power; and also that he had already cut the steam and 
was making application of brakes In order to bring the 
train to a stop at 17th sbreet. 

The fireman Baird was on the left hand side of the 
cab. This was the side from which appellee was approaching 


' ; .:■ ; --n '**#"' eri ■"■•■'-'■* "jTCtTOfl fifl 8©IlRf fidectlll 

..^ id &ki It) ttoiiiisJtiqEqja ^£[§1X8 a oBfiai b^d bslja 

,.661^3 xlcfVI isrfcf '*t&i' ataki era cmob woXb co leJ&io 

w, .:.j.Xa6'akm6ttlL h&i \t99*iSfi diSI nb^tf- eimo ©d es :^&di 

was *•■!' ■r:>hr~y"i^nA' .-^arr.4 *B05LB*3:cf €kdcf fyelXqqa ©jd neifw ^rairi 

©cid . ., , v~ — ■ -is^ BBw 0Xicfos!Od''ir« e 'seXXoqqB lo 

, , 'gn© Oxi:t lo iQri'iao i"no^ Jff^l'j feri^' Tjcf rtol^ioq •ria©i 
i >.lBi:i- dxlcf lo *2BeXa bQiisssq iflo orf;J wsa eri S^jbb -oH 

\/Bfi i>h!5 sj:ti^rrc ;o c^noil odi' is -^ooL 

,18x1' . '. • ,.f/iomteod ^i^Bffiy lo 9£>lfi ;f'4Sl-i 

,©XI?ff?.-:!'o#:!:r: j ' ^'-^^/Xactqjs feiiii ;ti n^owJecf cfosqaii o'di i^d ©aam 

i;?6 odd- fenB tgnlfilrlB sew xii/a erid- e-^aa ©E 

i'ittXd' ©rW y^ja fe«ilaifed aea^lXl sAlIXx/q earr bcia 

tsscd as eBlhsi'xS^lt lo b&eqs. a b@noB9i evsd dorr JbXiroo 

£>«» 'l&hBls^ ijlsc.f 'fii 'f*if5Xrfja^B «jli neewlfeo' flljs-td dadcJ xf^lw 

ov«d J^c, '<3Jj-a«*d jSxtleEcxo desn^s d;t3X «dd 

f)^^^ wee '-f/p •^6B««s.£i3 £)ad Off ;JfliCjf 0«Xi3 finis jiisrtroq drid 

a'<»'5f.'?TEd 16 iioXiaiolXqqa ^nlalfim baw 
• des-Tl.: ritfVX cffl qoc^a a oct nXflid 
fjiiBd' af'ii^I "©ifdf it& BAir 'MXAa narisiJ^l ©ifT 
SnXrfOfloiqqfl ftBw seXXsqq* dotd»ir irjo'irt'. »Ma edi eaur RXdT .dao 

the crossing. He states the bell was ringing and the 
whistle blowing, and that this had been continvilng since 
they jiulled out of the Rock Island station; that as tliey 
approached the 15th street crossing, the train was going 
about twenty-five miles an hour; that it was being slow- 
ed down by the engineer for a stop at 17th street for 
the Moline station; that be saw an automobile coming 
from the north; that, in his opinion, it was travelling 
at about fifteen miles an hour; that it did not change 
speed; that it came upon the track directly in front of 
the engine when he lost sight of it; that he called to 
the engineer when he saw the automobile was not going to 
stop. He states that from the place where he first observed 
appellee's automobile approaching the track, was a distance 
of about ninety feet from the track, and at the time the 
engine was about one hundred forty feet west of the cross- 
ing; that he watched the car and as soon as it became 
apparent the driver thereof did not intend to stop, he 
called to the engineer. 

The witness Wayaert was a member of the police 
department, assigned to crossing duty. He was in the 
vicinity of the 15th street crossing; he heard the train 
whistle, and on approaching 15th street, he saxv a car 
coming from the north. As he reached the entrance to 
15th street, he stopped his automobile to let this car 
from the north pass in front of him. He saw the car 
approaching the track and heard the engine whistling. 


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ion rslfc 'iosisrld tavlit' adrf ;tti©*u8qqj8 

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oct ©orijsrtd'n© eri* fiferioae i :. - ;^rl;» morrt saJjmoo 

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: ^ rl eaBq rutfoa ,©xicJ Kioal 

• S£tlX;felxtw onlgn© esrlcr bi&ed Jbrta :js'o^i;t e.di gfllilofloiqqja 

He saw a cloud of dust as the engine came upon the cross- 
ing* He states that the engine was "whistling plenty," 
and estimates that vdien he first heard Its whistle was 
about 10th street. 

The witness Olson worked in a factory located adjacent 
to the 15th street crossing. He was on his way to work 
and as he approached the crossing, he heard the i/^ilstle 
of a train. Ke says that it continued to whistle as he 
continued his way toward the crossing; that the pavement 
was dry and visibility goodj that he saw an automobile 
coming dowQ 15th street from the north, and at this time 
he heard the whistle of the train; that he saw the automo- 
bile come upon the track; that it was coming very slowly, 
and that it maintained the same rate of speed as it came 
upon the track. He says he saw that a man was driving 
the car; that it seemed to him, he was looking straight 
ahead; that as he saw the car coming upon the track and 
the train coming closer, he watched and saw the engine 
strike the automobile; that the automobile was almost 
across the track when it was struck; that the right rear 
fender was struck by the engine, and the automobile shoved 
across the street by the curb next to Hickey Brother's 
Cigar Store. He states the automobile was not overturned, 
and that he saw a man lying on the pavement in front of 
the car, but he did not see him fall out of the car; 
that the train was travelling about twenty-five to thirty 
miles an hour at the time of the accident, and the #11 s tie 
was blowing; that he sav/ no other traffic on 15th street 





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at the tlvie except the aiitomohile that was strtick; that 
he went over and looked at the cbt and saw it had "been 
hit on the right rear fender. He says that when he first 
saw the automobile approaching the crossing, it was about 
a block north of him. 

The witness Bradford vms employed in a factory 
adjacent to the crossing. He was en his way to work. 
Re says that vScien he heard the train whistling, he 
hastened his gait, thinking it was a freight train, and 
that he might be able to get across the crossing before 
it blocked his pathway; but as he approached the crossing, 
he saw he could not msJce it. He says he saw an automobile 
coming from the north. He judges the speed to be from ten 
to fifteen miles an hour. Pie says he saw a man was driving 
the car J that he saw the engine hit the automobile; that 
he thinks the automobile lacked about one foot of clearing 
the engine. He says the car was turned part vmy around in 
the street, and that the rear bumper was knocked off. He 
did not observe any other traffic on 15th street at the time. 

The witness Lewis was at the crossing on the morning 
In question. He states it was a nice, bright morning, and 
the visibility was good; that he was outside of Hie key 
Brother's Cigar Store; that he heard a train whistling; 
that he judged it was then about 11th street; that he re- 
mained standing on the corner by the cigar store; that he 
did not notice the automobile approaching the crossing 
until after he heard the train coming; that he saw the car 


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i'rf «r©ni- ..jXiJLbnBjf e 6«rtiBxa 

coming from the north toward the crossing; that it was 
coming slowly; that the train at that time was about 13th 
street; that as he saw the train come across 14th street, 
the automobile was still approaching the tracks; that he 
looked at the automobile in an effort to see if he could 
not call the driver's attention to the fact a train was 
coming; that the train kept 'jfcistllng all the time, and 
the automobile kept slowly approaching the crossing; that 
he could not succeed in attracting the driver's attention; 
that wtien the train whistled for the 14th street crossing; 
it appeared to him the automobile was going to stop; that 
the whistle kept blowing, that the car kept slowly on its 
way toward the tracks; that he did not see the driver of the 
car tiirn his head either way, and that he was almost across 
the track before his oar was struck. The witness states 
that when the car was struck by the engine, it was tixrned 
around in the street and pushed toward where he was standing 
by the cigar store; that he ran into the street out of the 
pathway of the automobile. He says he was never able to 
attract the attention of the driver of the car; that he 
looked at the car after the accident and saw that the right 
rear portion was damaged the most. He states he saw no 
other traffic on 15th street at tirie time; that the whistle 
was blowing and the bell was ringing continuously as the 
train approached 15th street crossing; that the train vrais 
making the noise usual to a moving train, and that he could 
hear this noise for about a block; that the right rear end 


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6x£;f lo,*iro ieetti^ edi Qicl hbi sri iadi ;eiocts iBglo exld -^d 

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od ctBrlJ jt»o »il,!t Ip idyl'xf) ©rlv '.ctnedd-ja ©cLd dOB-xida 

;td^Ii a4^' -fiB daefeioos orij 'isjia 140 ©riif is £)SjfooI 

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Gil-' ' • i^^rvt^l-x EBW XI©cf ©iict baa gxsiwold 8bw 

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Mijoo ©4 dBri.' ,ai:^»i;d gaJtvom s cd Ibc/bx; eaJton ©rtt gajblaxn 

of the ffutonoblle was tmrnped by the front of the engine; 
that hl3 attention "^as held to the oncoming train and the 
approaching aiitomobile, and that he watched them botda 
until the time of the impact. 

It is incumbent upon the plaintiff in a case of 
this character to show due care and caution. According 
to the testimony of the plaintiff, he was thoroughly 
familiar with this crossing and had been using the same 
daily since 1927. He says he neither saw nor heard the 
train, and does not remember its striking his automobile. 
The evidence shows that he had almost cleared the path of 
the approaching train. It is obvious that had he seen it, 
he could have either stopped his car or have cleared the 
track. The fireman who saw his car approaching the cross- 
ing, had no cause to presume that the driver thereof would 
act otherwise the.n a reasonably prudent person would do, 
and would refrain from driving his automobile upon the 
track directly in front of the train, thus putting himself 
in a place of Inminent peril. He states that as soon as 
it became obvious to him the driver of the car did not 
Intend to stop, he immediately called to the engineer, "wftio 
brought the train to a stop. The evidence of the v/ltnesses 
who were at the crossing, and who are disinterested, clearly 
established the fact that the bell and the v;histle of the 
engine were being sounded continueauly from some several 
blocks back, and were being so so\mded at the tine of the 
collision with appellee's automobile. Some of them saw 
the collision. One of them states that he endeavored to 


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as nc . 

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edit lo eI;Jal ons iXetf Siia ia/fcf Joa'i dxti £>«xlellcffliaa 

Xaievsa omoe rao*i:1 ■'iXff0ewni;Jnos i^oixiifoa s^^-tocf ersew snl^nt? 

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wsc . "aeXXeqqjs riSirr nolalXXoo 

o.:t Jbsiov3 3b;.© ©ri 3siii^ ssjflita ipcerid lo oaO .noialXXoo oitt 


attract the attention of appellee, so tliat he might take 
action for his safety. 

It was urged that since two juries had foamd for 
appellee the verdict should be permitted to stand, under 
the riile as observed In the case of Hlnkle v. Block & E^uhl 
Co., 259 111. App. 674. However, it will appear In that 
opinion, the couj?t foimd there was evidence tending to 
support the declaration. It recognized that such rule 

1/ is not operative where as a matter of law, the testimony 


,'i does not fairly tend to prove the cause of action. It is 

with much reluctance this court again remands tMs cause, 
b^^t v/e find nothing in appellee's evidence tending to prove 
due care and caution upon his part. On the contrary, the 
evidence in the case tends to prove lack of the observance 
of such conduct as an ordinary, prudent person would exer- 
cise uxider similar conditions and circuiiistances. 

This was a heavy passenger train, pulling up-grade, 
with the whistle and bell in continuous operation and making 
all the other confusion and noise incident to a train of 
such character. Appellee was in possession of his normal 
faculties. He was in the habit of using this crossing 
several times each day over a period of many years. The 
physicial facts Indicate the appellee was in the act of 
clearing the track when his car T?as struck. Althougb. he 
states that he looked and did not see the train, yet under 
the circumstances existing herein, we do not consider such 
statement sufficient to establish due care. 

The judgment is therefore reversed, and the cause 


Reversed and remanded, 


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■'iiit »»» 



OEhERAL NO. 9783 



T n^ 


%Jf w 



Ootober'^^^jsryr, A. D. 194^' 




PEORIA STAR G0i4P/iNY, o corp- 
oration, LOUIS PROERL, rf/Of W. 
CLAUDE U. -TONE^-'^xecutor and 
Trustee of tia^ Estate of FANi^IE 
a. BALD .V I^ ,' dec ea.;ed, HLLEN L. 





LtOyE, J. : 

Peoria otar Company , a corporation, Is the publisher of the Peoria 
Star, a dally newspaper. Tne corporation was organized In 1397, with a 
capltrl stock of *25, 000.00, divided into 250 sheres. On October 11, 
1920, t.he cap it el stock was Increased to <»100,000.00, with 1000 shares. 
The addltlon^^750 shares were Issued as a stock dividend against a sur- 
plus of approximately $75,000.00. On December 4, 1939, appellant filed 
s oomplelnt against appellees In the circuit court of Peoria County to 
establish her alleged title to 248 shores of the original Issue, clrdmed 
as a gift fi\jm her mother, Fsnnle 0. Baldwin, nov; deceased, and 744 of 
the sh'rea Issued as a stock dividend, aggregating 992 shares claimed. 


V*? ,* 

awT Kj 


1 ,f>a8a«f ' trtivisl' 







386 anl;>9aa'i 

^a ;faXf(Xq(noo 4 

Answers to the complaint and replies were filed. All the pleadings 
ere verified, j-'he cause v;as referred to s speci.?l rasster, who re- 
coiamended a decree finding appellant is the owner of 248 shares of 
the capital stock. The exceptions of appellant to the raester's 
report viere overruled, the exceptions of appellees were sustained, 
and a decree, from vdriich tnis appeal is prosecuted, was entered, 
dismissing; the compleint for v;Ent of equity. The pertinent portions 
of the complaint allege that appellant's mother, Fannie (J. Baldwin, 
was the o\vner of all the 250 shares of the capital stock, rnd th t on 
Fehrucry 15, 1S18, she transferred and ar.signed all her right, tl :le 
rnd interest therein to appellant, pursu nt to the provisions of a 
written contract of that date betv/een them, as i gift inter vivos, 
reserving the income, dividends and the right to vote the stock 
during her lifetime, as she saw fit, for a.^pell^nt ' s best interest, 
at sny stockholders meeting; that immediately thereaJ'ter the cor- 
poration, by Fcnnle 0. Baldwin, its president, and M«y B. Finney, 
its secretary, issued a certificate for 250 sh res to appellant, which 
she delivered the next d-^^^y for cancellation and received a certific te 
for 248 shares, reciting on its face: "This certific te Is subject to 
the terms and conditions of an agreement between Fannie G. Baldwin and 
Sidney Baldwin, dated February 15, 1918!*; that she haa ever since been 
the owner and holder of such certific -te ajnd th-- t it has never been 
surrendered, transferred, sold, pledged or aslgned by her, and has 
never been lawfullj' cancelled on the stock books or records of the 
corpor tion. The increase of the capitta stock ind the subsequent 
isGue of 1000 shares to her mother and others, including appelleeB, 
fire then set out, and it is alleged that such acts were all vithout 
her knov ledge, consent or acquiescence, and were illegal and in fraud 


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anoiJ-scq Jnani*i»q idT .%31upt 1 Iqsioo siiJ ^UaaiaeX* 

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ao Jed.' siafia OdS ©riJ ila lo i«nwo wl3 ^aav 

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nsocf tsvaxi ajed ?X * riJ .bns r<J- olllJiao dovjs lo toMori ifui laawo ailJ 

dBjd i>na ,79x1 ^d. £$£(§Xe i; 3i»9Xq iMoa «^6'Xi«la»8t;f pita's a^nai^if a 

9flJ 1c aJbiooai lo ajCoc0 jiooJa ©ilJ ao ^oXXaooso -^XXJilwaX flaad lavaA 

■ inaiJpaBjduB srij fcae al^dfi) XasJiqao oi. ©oioai aril .aojj aoqic« 

,3agXX8qq3 jjcXI)«Xoai ,9'X3fi?o fijiiS ladl^Jcfii lari off aoi ;xle O^OX lo auaai 

3iJGAil<- LLa ettM M^p&i&oaa. iBti) Jbe^aXXa ai $t bas ,;tuc Sbb nad? ns 

Jbuail al 6fl(5 la:^B£il a:i»v l>n« ^aonapaeiupPR to crnsanoo ,e:vj6aXwoa;i aad 


of her right and title, without consideration, and were null ?>nd 
void. It is furtner alleged thot neither appellant's mother, who 
died on t/eceraber 3, 1938, nor ?ny other officer of the corporation 
reported to her or kept her advised of the affairs -nd doings of 
the company; that appellant w s almost continuously absent from 
^eoria from February 15, 1918, until shortly before her mother's 
death, and paid no attention to the corporations affairs, wholly 
relying upon the actions and good faith of her mother to represent 
her interest therein; that siie wes designedly and continuously kept 
in ignorance of the conditions and management of the affairs of the 
corporation, and did not become advised of the details of tne issue 
of tne 1000 shares of stock until after her mother's deatn/ Jti«p^^ 

quiry y^qfer a fc 64- afe*jggs>»9^aw)i«»e^ the corporate recoras prior to 1920 
Vvere not available, '^nd the officers end Cj^ents of the corporation 
reported they v.ere lost or had otherwise disappeared. The oom- 
plslnt charges, jn information and belief, that such records were 
intentionally destroyed by some person, officer or agent of the 
corporation, for the purpote of defrauding appellant of her rights 
rnd to prevent the true facts pertaining to the issue of the in- 
crease in stock from becoming known; that on December 20, 1938, Claude 
U. Stone caused a meeting of the stockholders to be held, ^nd thereat 
illegally and unlawfully claimed the right to vote 798 shares of the 
capital stock allegedly in his name as executor of the estnte of 
Fannie G. Baldwin, deceased, and thereby caused himself to be elected 
president of the corporation; th-t ever since the death of Fonnie G. 
Baldwin he has dominated and controlled the board of directors snd 
dictated ail the financial tnd business affairs of the corporntion; 
the t he is inexperienced in newspaper work and is a lawyer and master 
in chr.ncery of the circuit court; that he hos raiemanr;ged the affairs 


■jffit b'^Ti'^lT.'^ ':Tj:i1tii!l si JI ,f)iOi 

ncWjBioqic ^dmaosG no b»it 

to B-^ntcb ftn« bi1.c i "^o B'^siTft- ; ul cd betioqsi 

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«1;J 6ri,t 10 Jaaaie^. ..otiJLbn orteiortj;- 

>w»^fc>> *rijf«<ef) 3 •i9riJO!r I'^d t'^t'tr^ fffms iloo^s to a«iflri« OC)OJ ^nj tr 

^^I'^O'^n .-Id-, ,'S9.Lf«»f' aft^tsrlo JnIflX< 

ari.: LsaolJnsJnJ 

e^^lT 1''. ,mlbij°tt9b *to eaoqtjjc ,-iol;f««xoqioc 

:t o? « .Toel 6L ;tfl9V9iq o* An* 

f)«g6XIi8 jit)oi9 SM^iqat 
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/TOO ©rlJ iC ^n9i>lat«jq 

bar. &nt\io:-; oiin fiocrr.nimoA eafi Ml fliwMsa 

; .ic. J : .uqioti eriJ 1o siIo'Ll:^ saaaieocf Jann Icionsnl, ra £«:f«}oi£ 

td^BAm ba» idlcwil ? ai bOR rfiow oieqiiqev/sri ni i>9 0n»ii8qX9ni iadi 

ailaltfl 9riJ Jba , ^naxnolBi a?iri ail jBritf J^^uoo Jiuo-ilo •ill Ic xisonrjrio nJ 


of the oorpor^tlon, cxiused it to incur l^^rge Indebtedness, suffered 
the circulation of the newspaper to greatly decrease, end that ap- 
pellant fears that by re 5 son of the foregoing, the corporation Is 
drifting into insolvency; that "t the time of the meeting referred 
to, she was unrole to ascert her rights under the contract and stools; 
certlficete rnentloned, because t th't time she hrd no knowledge or 
recollection of their thereabouts, ?nd did not discover them until 
about November 1, lc;39; that Immediately upon finding them siie de- 
livered them to her counsel; that at a special meeting of the stock- 
holders on November 10, 1939, her counsel protested against any pro- 
cedure at tne meeting and called attention to her claim to 992 shares 
of the capital stock, i'he complaint prays tl-iPt the trajnsfers of all 
Bhsres of the capital stock to Fr-nnie G-. Baldwin rnd the other de- 
lendpnts since October 11, 1920, be declsrsd invalid and void, and that 
pppellP-nt be declsred to be the ov,ner of 248 shares of the original 
stock -nd 744 sa- res of the stock issued as a stock dividend; that 
Clfiude U, Stone, °s executor -'^nd trustee of her mother s estate, be 
ordered to transfer to her a oertificote for suoh 744 shares; rnd for 
an accounting by the defendrjits. 

The nnowers of appellees deny seristim ^11 the negations of the 
complaint relr^tive to the alleged transfer of 250 sh-res of the capital 
stock by Fsjinle G. Baldwin to appellant, the delivery by appellant of 
ony certifiopte therefor for ooncellation, or the iasue of any new stock 
certlficftte to her; they alleb'e the only stock ever transferred to ap- 
pellant by her roother, or otherwise, wr^s one share to en ;.le her to 
qualify as a director; thrt irlor to the issue of the 1000 shares of 
stock, 250 shares of Lhe original stock were surrendered by Fannie 0-. 
Baldwin and cr nee lied; deny that the issue of the 1000 shnres was in 
fraud of appcll nt ' s rights, or void; deny that she is entitled to 992 


litffiM mens levxujli; Jon l>li) sa-. ,:.wri,'od' s-iSiiv: TlgfUJ Ic acXjO»II 

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shares or any other shnre ; deny appellrnt had no knowledge of the 
corpor-te acts until ofter the death of her mother; allege she was 
present either in person or by proxy at -^11 meetings during the 
period stated in the complaint; deny she v/as ignorant of the cor- 
porste affairs, ? nd deny she ever had possession of the 248 shares 
or the purported contract prior to November 1, 1939; allege that at 
a meeting of the stockholders on March 31, 1939, st which she was 
present in person, Claude U. •^tone voted 798 shares as executor ^nd 
trustee of her mother's estate; that she mdde no pi'otest, and voted 
only one share; that et her request to iitone prior to the meeting, 
6he vas elected e. director and vice-president, for which she thanked 
him; deny the alleged searon for the certiflcnte of 248 shares of 
stock; admit the oifioers of the corporation informed her attorney 
that all stock records and corporation records, prior to 1920 had 
been lost or destroyed; deny they were destroyed by Fannie ^. Baldwin 
or ony of the present officers of the corporation, and ssy they never 
saw thera, except that May B. Finney saw them from time to time in pos» 
session of Joseph A. .'eil, as attorney , director fud vice-president of 
the corporation, but not after he ceased to act in that cap city, nd 
thRt from 1910 to 1925 he was attorney for the corporation, nnd also a 
director and vice-president, and had possession of all its books and 
records; that he wfs also during that time attorney for Fannie S. Baldwin 
end nad in his pobsession her priv te papers end documents, Including 
wills and undelivered stock of the corporation, including the purported 
certificate fop 248 saares; that in 1925 Fennie ^. Baldwin discharged 
him as attorney for the corporation and herself, had him removed from 
his director-ship, and demanded from him the company books and records 
and her private papeis, which he refused to deliver until she employed 
Frank Qulnn and Shelton MoCirath, attorneys, vjho, after repeated demands. 

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obtained only p. port of the books and records, not including nny i-^-hich 
appellant alleges wer:^ concealed or destroydd, nor any of her private 
papers or such stock certificate; allege that the books and records 
which appellant claims were concealed or destroyed are In her possess- 
ion snd th:t she is unwilling to disclose their existence or contents; 
deny the allegations as to inexperience and mlsiaanageraent of Claude U. 
Stone* danger of insolvency, and allege increased circulation of the 
newspaper, ^nd operating econocaies of over h?50,000,00; allege that 
appellant at all tiiaes up to i-Jovember 1, 1939, recognized her mother as 
the unqualified ov.-ner of 798 shares of the ca.pitsl stock, and subsequent 
to r'ebruary 15, 1918, signed arid delivered numerous paroxles in which she 
referred to herself as owning only one sh re; that she made numerous 
atstements and -ttrote numerous letters in which she stated aer aiother was 
the owner of the oorapeny; th; t she was present in person or by proxy at 
numerous meetings of the sstockholders at which It vas stated she was the 
owner of only one share, and that she knew st all times thr.t her mother 
owned 798 shares; that appellee 6tone informed her the books so sriOwed 
and that the other shsres vere ovmed by the directors, including epp- 
ell??nt; that subsequent to February 15, 1918 and prior to her mother's 
death, appellant was a director of the corporation ^ nd had access to the 
books and should have knov.n what they showed; that during ner mother's 
entire lifetime she_,.made no cleira to her to tne ownership, in reversion 
or otherwise, of ?ny of the shares; that after her mother's death Olaude 
U, stone, as executor and trustee of ner Jiuther's estate paid her in 
regular monthly installments, more than ^6000. 00 in six months, and that 
it was not until after such payments ceased th t appellant mcde ejiy claim 
to him that she ov.ned more th^'n one share of the cipit 1 stock, and alleges 
she lo estopped from making such claim by laches; alleges, on information 
end belief, that the contract relied upon by appellant was never delivered 
to her, but thfit during the lifetime of Fannie ^. Baldwin, it remrdned 


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In ner possession and was wholly unknown to appellant until discovered 
by her among her mother's private papers after her death and wfis signed 
by ajpellent thereafter; that the c rtificrte for 248 sh res of the 
capltel stock v^as never delivered to appellant or to -ny one for her, 
but v?gs unknovn to her during her mother's lifetime, &nd until her 
mother's death was in the posseEsljn of Joseph A. Weil, v-ho obtained 
possession 08 the personal attorney of Fsnnie G. Baldwin, and did not 
surrender pocBeESion toher vhen demand was made for her private papers; 
snd thrt trje entire proposed transaction relative to which such papers 
vere drnf ted was never r-t ^ny time consummated; ejid t hat the o^vnership 
of the stock ic cs shown by the corporate records. 

The replies of rppell-^nt to the r.nswers admit that up to ?nd in- 
cluding the year 1925, Joseph A. Weil h°d in his possession "certain" 
books 5jid records of he corporstion, but deny he had in i:ls possess- 
ion all the private papers ond documents of Fannie G. Bv^ldvAn, includ- 
ing her will, and deny ne had any undelivered stock certifloote, ^md 
particularly tne certif ic^-te for 248 shares; end allege thst ever,/ 
book, paper or doc ment which had ceen in his pot3 session were deliver- 
ed to frank J. '^^uinn, rjid th?t thereafter no claim was made upon i'^r.^eil 
for any of the ssine.i wm. traverse the other allegations of the 5ns\:ers. 

Appeil out's f^-ther, ^xx^ene F.Brldwin, vps one of the original stock- 
iiOld?rs of tne corporr.tion, ov;ning one share. He v;bs the manager and 
editor of tne newspaper until nis death on November 9, 1914. At that 
time he still o.ned one sh^^rc of the capital stock, which, with all 

is other property he bequeathed to F?nnie G.Bsldwin, nis widow, who 
owned the other 249 shrrss. She thereby became the ovner of all the 
capit-l stock. Shortly after the deatn of Eugene F. Baldwin appellant 

T'nd May B. Finney becajne directors of the corpor/^tion, '.-.Ith Fannie G. 


b9agls E . .... 

ton ?.■.-•. 


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Baldwin, the othsr director, who was the president. This was evident- 
ly aooomplished by the transfer of one qualifying sh^ re each to appell- 
ant £Jid ria^' S^ flnney by Fannie G.Baldwin. Harry M. Powell, one of trie 
oi'lginal stockhoid rs and a former director was employed as general 
ra£;n£.ger of tne corporation. Appellant wae continuously a member of the 
ooard of directors froa that tine until 1331. In iNoveaber, 1920, after 
tiie capital stock was incre- sed, tht; numbt-r of directors v/as tlso in- 
jreesed to five, sj:id vJl^renoe Sys ter and Joseph -t-. ./eil, nov/ of ap- 
pellant's counsel, were added to the bo;'rd, and the latter was elected 
aa vice-president in place of appellant, -who resigned, -•t that time %. 
'^eil was sttorney for tne corporation -nd Fannie G-. Baldwin, "ppeilant 
was Egaln elected a director on i-Iarch 31, 1939. 

On December 15, 1915, about one year after lier husband's death, 
Fnnnle G. Baldwin executed a will by which she deviced certain real est^tte 
to Frank E. Baldwin, her eon, and maae a specific bequest of ?-ll her stock 
in the corporation naming appellant ^Jid Harry 'A. Powell as executors. 
By a codicil of Jnu ry ::2, 1920, Joseph A. '.•.ell v.-as named as co-executor 
with appellant, in place of Harry M. Powell, who died on the 5th of that 

On December 1, 1920,879 anrres of the capital stock v;ere issued to 
Fannie «. Baldwin. The five members of the borrd of man gers of the 
newspaper (not iaentlcal, except May 3. Finney, v>.ith the five directors) 
received twenty shares each as a bonus. Twenty sh-res for voting pur- 
poses (afterward cancelled^ were issued to Joseph A.Weil. The remain- 
ing sh re wes issued to appellnnt. Jlaude U. Stone delivered it to her 
oy mall. Therecfter the holdings of the five m-negers were Increased 
to 40 shares each through a donation of 1 shares from Fannie G. Baldwin. 
She was president of the corporation until her death, on December 3,1938. 


1& oS a-, rulti «fi- JillqfljooSiL 

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Glaudt U.oton© has slnae the dee^n of Ffijinle ^. Baldwin been 
president of the corporation ^ election of the boc.rd of directors 
of tne corporation. Aa;/ 3. Finney, one of the r-^ppellees, has been 
treasurer, and wltn the exception of one ye--r, 1919-1920, has been 
secretary of the corporation ev-r Binoe the deatii of Eugene F. 
Baldwin. Helen L. B idwin and Margaret S. Baldwin are the children 
of Frank t-. Bcldxvin, the deceased brother of ftppellont. He died 
m 1926. 

-.t the time this auit waa instituted the corporrte records saowed 
tne following stock-o-.nership by appellees: Olruae U. otone, executor 
and trustee of the eetr-te of Fpnnle ^i. Baldwin, deceased, 798 snrres; 
Claude U. -Jtone, Individupl ly, 21 shares; Aay B. Finney, 40 shares; 
Louis i'roehl, 40 shares; Luella 3. ilyster, 26 shares; Raymond D. Syster, 
7 shares; Virginia Eyater Drury, 7 shares; Teorla Star Company (stock, in 
treasury) 60 shares; Mildred tildney Baldwin, 1 share. The Eysters and 
Mrs. Drury are ths widow and heirs of Olj; pence Eyster, deceaaed, one 
of the above mentioned managers. i4ay B* Finney and Louis Proehl are 
two of the other managers. Jlaude U. -^tone acquired 20 shares fro ra one 
of tne other managers and 1 shre from Fannie G. B;ildv;in. 

On j.'eceraber 10, 1923, Fannie G. Bcddwin executed a contract with 
the corporation and the board of fiis.n.?gers, reciting she was the oner 
of a Irr^e majority of the stock, .urid believed it was of vital import- 
ance that the existiiig managemeiit should continue as long as possible. 
It provided thrt tiieir contracts of employment of i«oveaber 20,1920, 
siiould be extended five years beyond their termin. tion, on the saae 
terms, except that the contracts should not be cpjicel-tble at the 
corpor tion's will, but only In case of factual incorap tenoy or in- 
capacity of the members; thrt before Fannie G. Baldwin shculd sell 


noiffooii- YS fioiSftioq'icc; ©rfj to jtHsiilaa'sq 
.3^90X9 9ii3 liJivr has ^i^iu^i. 




.00 Sil. 



or trensfer her stock to -^ny other person she vould first give the 
members of the bo?rd a three months option to purchase It at the 
same price and on the seme ternjs "s such proposed s^le; that If she 
did not sell during her lifetime, she binds her est-te to gront the 
board, or an:/ or either of thera, an exclusive option to purchase 
all of her stock -t a price to be fixed by the probate court of 
^eorla County rnd upon such terras as the probate judge should direct, 
such option to continue six months after approval of em appraisement 
of the stock. Joseph a. Weil took this contrfict to New York, where 
it was signed by Fonnle G. Baldwin. 

On ueoeraber 13, 1923, three d^ys after the date of the contract, 
Fennle Cr. Baldwin executed -i nev v;ill, by v.hich she bequeathed h^ 
hou e;iold goods to appellant, rnd _ave the residue of her estrte to 
Joseph A. Weil, Claude U, •-•tone and Wt^lter Ti, Causey, in trust, with 
directions to pf^y from the net income 110,000.00 per annum to appellsnt, 
and ^8000.00 per snnurn to FrrrJj; Ci. Brldwin. The trust \^'pa to continue 
for a period of tventy years. In oate of the denth of eith-r, their 
shrres to go to their children, and if appellant had no childreii, her 
share was to go to Frank's children. The will provided that the testatix's 
stock in the corpor tlon should not be sold vithout giving the board of 
managers the first option to purchase it. 

In the early part of 1925 Fajnnle ^. Baldwin became convinced that 
the contract of December iO, 1923, was unfair, '^he consulted Olaude U, 
6tone, aM attorneys Samuel D. Weaver end. Frank Q,uinii, both now deceased, 
about the matter, and retained Mr. Quinn and ihelton i'loOrath in connection 
with tne cancellation of the contract ana to recover from t'lr. ''^eil any 
documents belontjlng to her or the corporation, including the stock held 
by him for voting purposes. This resulted in a cancellation and ajinul- 
ment of the contract, by a written instrument dated June 25, 1925, and 


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the execution of b new agreement between the same parties, dated 
June 26, 1925, containing auostantlrlly the same provisions as the 
cancelled contract, except that it extended the term ten years in 
place of five years, r:nd eliminated the provision for fixing the 
price and ter;ns of s=le by the probate court, c'^nd reserved in Fannie 
G. Baldwin, the right to sell the minimum amount of stock to any 
person or persons to enable thera to runlify rq directors without 
first giving the board of iaanag;ers an option to purchase such stock. 

On July 3, 1925, Fannie ^. Saldvdn executed --? new will contnln- 
ing eubetantlally the aarae provisions as her will of December l3, 1923, 
except that Frank ttullok was substituted as one of the trustees in place 
of Joseph A. Well. ^- codicil, dated July 28, 1925, incresi^es the annuel 
payment to appellant out of the trust fund fxxjm *10,000.00 to ^12,000.00, 

Her last will rund testament, dated February 7, 1931, ond p codicil 
of November 29, 1935, vere adraltted to probate by the probate court of 
Peoria County on i^eoeraber 3, 1938. Claude U. ^tone was named therein 
Bs executor and trustee, and was appointed by and qualified as such 
executor in the probate court. 798 shares of the stock claimed by ap- 
pellant constitute the principal asset of her estate, qs claimed by ap- 
pellees. The will bequeathes all of the decedent's household goods and 
effects, including books, rugs, furniture, etja, , to appellant. After a 
bequest to the cere-trkers of her residence, she devised and bequeathed 
all the residue of her eatate to Claude U. Stone, in trust, with direc- 
tions thst 60^ of the net income therefrom be paid to appellant during 
her lifetime, and 40^ to Helen L. Baldwin -nd Mnrgaret S. Baldwin, during 
their respective lives. The trust is to tennlnate twenty one years 
after the death of the last survivor of them. In case of the death of 
any of them during the trust period interim payments of the shares of 
tnose so dying, to descendants, or to eurvlvors of the three named, are 
provided for. Upon the termingtion of the trust the corpus is to be 
divided among their deeoendante, if any, per stirpes, end if tnere are 


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-131!^ 'i^ rn' ,p.sq~iJ.dB i«q ^iiis li , a^nftfin^otsi) rtiaciJ saoaus l>at)itX^ 


no such aescendants, a Peoria church Is to receive ^100,000.00, °nd 
the remainder is to go to such ch'^rlty or charities engaged in siding 
tiie poor in the ^--ity of Peoria as the trustee or his successor shall 

TJ*e cancellation of the contract mentioned and the discharge of 
Joseph ^.Well as attorney for the corpor tion and Fannie Q, Bsldwin 
marks the beginning of^<*i ill-feeling; betiveen Mr. '-e? 1 and Mr. Stone, 
reflected throughout the record here, "ppellnnt clrims that Mr. Jjton© 
instigated and engineered those trRnsrctions in c scheme to obtain 
control of the corporation Bnd the newspaper, in p. struggle to that 
end between him and the borrd of managers. 

Neither party prodtused -^.ny book showing the issue or transfer of 
?ny of the stock prior to December 1, 1920, v^hen the 1000 sh?;re8 v.'ere 
issued, 8.S above related, except ? book showing the orlglnrl ieiiue of 
the 250 Bhrres upon incorporation nbout ^hich there is no controversy. 
Appellant introduced in evid«ice a contrFCt signed by her end her mother, 
dated Februfry 15, 1918, subst?:.ntlally in the terras alleged in the com- 
plaint, njid s contract of the sane date, betveen her nnd Hrrry M. Povell, 
employing the Irtter p.s ran ger of the corporntion until the death of 
Ffnnie ^. Baldwin. The contract reoit';6 thst appellant ie the owner of 
all the corporate stock, subject to the life interest of her mother, and 
gives Mr. Powell the option to purch^;^e fifty one- per cent of the capital 
stock Pt ^ny tine after the death of Fannie ^. Baldwin, with a provisin 
th' t in the event of the death of Powell the contract shall terminate. 
A rider, signed in the name of the corrorrtion, by Fannie G. Baldwin, 
precldent, app3X)ves the contract. It was terminated by the death of Mr. 
•t'owell on January 5, 1920. Appell?:nt also introduced in evidence a cert- 
ificate for 248 8har> s of the capital stock, dated i-'ebruary 16, 1918, with 
the notation thereon as alleged In the compl^dnt. The certificate is 
signed by Fannie "i. B Idwin, ae president, and May B. Finney, as secre- 


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The testimony shows thrt on or r.bout February 14, 1918, aopell- 
?nt, Fannie CJ. Baldwin cjid H^rry M. Powell went to the office of Weil 
and Bartley, attorneys, r.nd held a conference in Mr. v.'eil's private 
office. Mr. Bcrtley was an assoclete, but not a prrtner, of Mr. Well. 
They had separate private rooms. After the conference, Mr. Br.rtley 
dictated the two oontrscts mentioned to the stenographer, Anna Reiscz, 
and prepared the stock certificate for 248 shares. The next day the 
parties returned end had another conference v.'ith Mr. .jell in nls 
private office, xhere is no testimony as t. wh?t took pla:.; e at eltiier 
of these conferences in ^^r. -ell's prlv&te office, 

Anna heiscz testified tbpt Mr. Bartley wsb present at the confer- 
ences; that as the p^rtlee cpme out of Mr. Weil's room after the second 
confeJTence, sppellc-nt had 'Che two contracts pnd the stock oertlficete 
in rn envelope in her hand, and hnnded them to Mr, 'vvell, telling him 
to keep them for her, and thrt she v;ould call for them later; thet Mr, 
V.'ell kept them in n locked cabinet in nis privf^te office, pnd sxie pfter- 
vard 8av tiiem there; that appellant c^'me back about a yesr and a h?:lf 
later, got the documents and took them away >jlth her; that she did not 
see ^ir. v.eii g.lve them to pppellont, but she came out of his room with 
the aarae envelope, and that Mr.V^'eil told the v-ltness he had given them 
to appellant; pjid that thereafter she dl.s not see them until they vere 
returned late in 1939 or 1940 when this suit was begun. 

Hlldegard i-ewis testified that early in December, 1919, a;.pellant 
left hsr at the entrajice of the Jefferson Building in reoria, and asked 
her to wait until she went up to Mr. ell's office on on errand; that 
i.hen sne returned, they went to tne Baldv/in home, v/here appellant showed 
her the two contracts mentioned and the stock certifloate; that she did 
not read them, but "tnumbed" through them and looked at the signatures. 



.3ii; i»;:;o«x ^fi 

Appell;;nt testified that after I'ler mother ' a destli she searched 
for the contracts and certificate, and finally found them in a packet 
of old letters in ? cecre^t closet In thp 3pldwin home, known only to 
ber and ner father, and that whe burned tlie letters. She also testi- 
fied there was a secret closet in the b-' room in l:^r room, which 
was the normrd plf^oe foi- -t^he papers, 

Ellen James, a close friend of appellant, testified that on ap- 
pellfjnt's request by letter, ^fter her mother's death, she v;ent through 
appellant's desk at Monhegaji,i4aine, and sent appell^'oit all the papers, 
mostly' old letters, vmich she found; th"t on a lator date, in '-October, 
1939, she was with appellant at che Bpddwin home in Peori?; that ap- 
pellont was searching drawers, desks, sxielves piid closets, and osme into 
the room with sm untied packa£^e of old letters; that while t^oing through 
tne pacKage and burnin^^ letters, appellant soid: "l-ook v^hst I have, 
here is the contract with laother and ti"ie stock certificate. I v/ill take 
them right dovn to Joe v-eil"; that, the v^ltness picked them up and look- 
ed at them, but di .i not read them, and wu- not -^'ith appellant when she 
found the package; that, they were not in an envelope; and that sj/pellant 
then left the house. 

Eleanor A-.Burkhart testified that on an occasion in 1920, shortly 
after the deatn of Harry M. Pov/ell, che asked Fr-nnie ^. Baldwin if ap- 
pellajit was protected as to the ownertJhip of the iitook, and th.'t Mrs. 
Baldwin said: "•^idney is absolutely protected. I have made all the 
papers to that effoct"; that in the early IS^O's Hrs. Baldwin had a 
chance to sell the /-"eoria St' r and tnat she and aipell nt were arguing 
rbout it in tae pxeoence of tise v.itnes&; that Hrs. Baldwin said: "l;ell, 
tne stock is all yjurs, ajid 1 will be tcone before you, so y ju decide." 
I'he witness and Kathryn Entwhistle testified that from February 15, 1918, 
up to ttie deatn of F;.naie ^. Baldvdn appellant was abcent from i'eoria 


OS .. 

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Bl'so©'.- moil ;?m'..o.-; hb\k JniRiloqq-'s iiiwM.e£ >• -^iaii. . :>«c eit 


aost of tne time, In New York, Florida and Maine. 

Mai' 3- Finney testified aiie had mede a thorough search to find 
any book snoving the stock record prior to 1920, and had found none; 
thPt the books produced in evidence, showing stock issues and trans- 
fers since December 1, 1920, and the minutes of meetings, were ail the 
records there viere so fr:- as she knew, it is to be noticed that the 
replies of ?3.ppoll??jat do not traverr.e the allegations of the ans . er 
thv^it Joseph A. v.'eil had in his posGesslon "all" the corporate books 
and records up to rnd Including the year 1925. The replies admit he 
had "oertaln" bookc and records of the corporstion during thkt tlrne, 
and allCjieB he turned over all the hooka and records ,ln his possession 
to Fr&nit equina, attorney employed by Mrs. 3aldv;ln at the tlrae the con- 
tract vlth tiie board of raanat^^ers v;aa oanoelled in 1^25, Tiiis Istter 
allegation raises mi affirmative defence, concerning which there is 
no testimony to vsupport it. Miss Finney Blbo testified that t^ hand- 
tcrlting on the stubc of the 1000 eharec of stock issued on December 1, 
1920, is in the handwriting of Joseph -'>. Well, except the signfturfis for 
the receipt of the ccrtlf icrtee, and subsequent cencell.tion dcte on some 
of them. 

The minutes of a stockhold' r' g meeting on March ,31, 1939 show^the 
secretf-ry furnished a list of the r. tockholders, v;ith appellant owning 
one Bhare, Glaude U. Gtone no executor pnd trustee of her raothsr's estate 
798 shif^res, and the other shsroB sf. shown by the record vhen the suit w s 
str^rtcd; and that • appellant v;as elected ae one of the directors. Miss 
Finney, vJeorge ^. Barnec and Claude U. 3tone testified that a roll call 
of the utockhoid rs .--s the same appeared on the record \vas hed; thot 
appellant vae present in person, and mac© no protest and s-dd nothing 
to anybody aa to vh't the record shoved && to th© stock holdlngB or to 
the roll cc^ll ti^ken. 



•^c • 


■ siii-l'; tiv' nblicr^ .jfioX waii fli ,9a ij exiJ lo i«ca 

jnsl>iT9 a.t b90ubo'm aiootf • 





Miss Finney further testified thct the first time she ever heard 
of -ppellfnt's clflim thst sirje is the ov/ner of 248 shares of the stock 
was in iio^femb&r, 19;^, vhea hsr attorney sppeared ?t the bo?rd meeting. 
Louis ^' . Proeiil, sn offio??r and director of the corooration for over 
3S ys?^rs, testified he had been poquointed vitii appellant for over 
tnirty yenrs and first lerrned of h^r cl im Ft the same r^eeting. Mr. 
Young and Charles B. '^mith, e director, and connected v/ith the corpora- 
tion for 3S yeers, testified to the spme effect. 

Joseph *. B&rtley, one of*i- counsel, withdrew as such, 
end testified lie wae not pre5;ent at either of tJie above mentioned 
ccnferencea in i-r. i.eil's private office; th^t he preprred the two 
contracts fjid tiie stock certlf icr-te for 248 sb-iree in the nsme of ap- 
pel.i-ont from inf oita&tlon given him by Mr. '-'eil .Tind pursuront to his direc- 
tions; th'-.t ne vy£S not pret:eat In Mr. '.eil'd office on February 15, 1918, 
or at nny other time when appeliant h^d ;\ny of thOGo documents in her 
honas and {jave t^era to iir. Ueil, and did not see such a transaction; that 
he anv the stock oertificaoe in tne po>.^rtes8lon of Mr. --veil in the library 
of their office .n tne sumraor or f ^11 of 1925; that it was cither on the 
day thrt oertpin documents wer*^. turned over "oy Mr. -veil to the attorneys 
for Mrs. i3' idwin ond the corporation, or on the next day or so; th^t Mr. 
v.eil hnd stock certificte ^^nd t'-w others, and said they were cert- 
ificates for stock in the Peorlr St^r. 

A letter dated August 29, 1925, from c-jppellrnt , then in New York, 
to Claude U. Stone, st'tee: "I feel vr-ry much better about tilings since 
I h; d that t?.ik witn you." Mr. Stone testified the le' referred to 
long oonvorsf tlonc he hpd with her during thrt month, while he was visit- 
ing in New Zork ; that at one of the conversations they t&lked about the 
contract that had bean cancelled 9bout a month previouBly; thr^t in re- 
sponse to her inquiry, he told ner the provisions of hex?foot;he r's v,'ill 


AOQS avfo 911. ' 3nr 1S.» 

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XI.U a''Aarid'CfiHt'9o lo ^aoitiv^iq «d} nturt MoJ ad ^'tiXi;j'ni. lari o«f ^efiiictB 


of July 3, 1325, Gpecifying the details of it; th t Mrs. Baldwin had 
suggested to hia th-t iie tell appell'^nt about the \-ri.ll, if he chose 
to do so; thPt he told her ijhe had one Bh-^re of the cor5>or?^t9 stock, 
the bo^rd of ra-nar_iei'S and ^-^r. '.veil 80 sh-res e''-oh, snd th't her mother 
h&.d trie remaining 879 £h res; snd th9t atM?ell?'nt made no rcmnrk except 
to e35)re£s interest; that the next night she told him she wes very 
nappy because of wh; t he had told her about the v-lll and was very V.-9II 

satisfied, that if there were any books in the library thft he wcnted 
he coLild have thera; that in i-ebruary, 1926, r.p pell?.nt told hln.Frcnk 
A-as getting 5400.00 per month from her mother; th?t she vr'3s not getting 
her reasonable share and wanted money to buy ? home on Squirrel Island, 
Hsine; that the witness Irter niPde s d«ed from Fannie ^. Baldwin to 
eppell--nt for property at thst place; Mrs. Baldwin had purchased a 
sunner home in -appellant's n' me on Monheg^ji Islnjid, Mnlno, and one on 
Sanlbel Island, florid ; that ?.rpellant had written lattera to har aiother 
with the idea of hnvinK her mother liilt the amount to the grandchildren 
and their mother, and thrt he had repeatedly cnutionc^d her -.Bhs might be 
chari?;ed with undue influence; that st the time of Frank 3ald\ifin*s funeral 
ae had a conversation with appellant in whicn she ■ sked him vjhst effect 
*rank*e death would have upon her raoth^r'a v.'lll and v.'hnt vx:uld beooiae of 
uls snare; that ne told her it VvOuld go to Prank's children, and she 
replied thct they would have trouble v-lth Frank's v/idow when she learned 
sne di . not get as much as appellant, ?nc. thfet they would hffve to v/£-toh 
out; that on December 4th, 1938, he called at the Saldwin home, and appell- 
ant asked nim: ".lov was the Star left?"; that he told her "In trust"; 
then she asked who wos the trustee, rnd when he told her he W'-s, she 
replied: "^f course", and asked if she got ti.e house; that she then 
called ner friend Judith V/aller and expressed great harpiness at the 
informstion he had given her; th^^t on the d'y after Mrs. Saldvdn's funer- 
al, he had another conversation vith arpellcnt ; that she had v;ith her a 


Vv:) i_ .'■;<;!.. -iAii j:: : ■i;^!,^*"' lltfiiJUt*. i»l^fT >-i,a. -i.OiV ^«i,I$ . 

■-*• ~" "'its ;T9ri fievis Aiifi «4, nolJvBmo^. 

photostrtlc oajpy of her mothar's 1-at which he h~.d given her 
'^^ibout December 4th, 1933, and toldhlra she hsl read it; th t he told 
appellant thmt -.s she ^^as living vjitn her mother ?.t the time of her 
death, he thought she was entitled to a child's av^rrd; that they 
could not take out of tiie 3t-r more than her mother hrd received, and 
thct #1500.00 - month xfould be t?lien out •':;nd dlYifled on a sixty-f;>rty 
basis, 5nd that shes-ild thpt \i^ s ss.tisf ac tory to her; thst she said a 
friend hi=d suggested to her that she t/ke insurance to protect Sllen 
Jnraes piid thet Frr-nk's dput^htera should take insurance for their raother, 
3Jid asked the witness if he had any ideas about the library that had 
been left to ioer under the will; and thnt if ne did not, ohe th'ought 
she vould give it to the 3radley Polyteciinic Institute; that In Jan- 
uary, I9t39, £he told hl.a she v;gb taking steps to ^^et insurnnce for ^he 
benefit of EJ.len Jniaea; that under the v.lll there wfja nothing to 
on; rjia thrt in the ssx-ie conversation &he inentioned the fact that the 
vlll provided he could n'-ne l-ils successor c.c trustee, f^nd '^Gked hira to 
n^me her. He ^Iso testified th?t in 1931, hrvlne; heard rumors that 
Joseph A, Veil h'^.d posse. sion of the old stock of the corporrition, the 
vltnesa hed f converertion v.lth Mrt;. Brld^^in, and f-oked her about the 
possibility of stock. being out, rnd ^-hr-t pnpers one hnd made ft ;ny time 
m the pept; th-t the s'-id nothing was ever carried out, -nd thftt In 
1918 Mr, '.'.ell ond Hejcry Powell told her it wcs necessary to sign certain 
stock .nnd o certain pi; per to carry out the provisions of ihe will, ( evi- 
dently the v^ill of December 15, 1915) to be kept with the v.'ill p-ud De a 
part of it; tnat sne sr-id it was never In appellant's poEses^ion, but I'lr. 
Weil kept It; ond that v.nen the i?tDr w.^s re-orgi;jalzed, Mr. -eil told her 
she WO;. Id h''vc to aek.e e new vlll; that the v.-itneas ssw such v;ill in 1923, 
After '-estlfying it could not be found Fjnont; her papei-s, ne testified it 
created a twenty- year tmst , v/ith a division of the income, of 60/^ to 





■ ±^B'^ 

". wil: 





i >3d.: 

. (tij j(14./i«^ A><>WC 

lI jk> IkiC {> 

J i^vCii 


appellant and 40^ to Frsnk Baldvdn, and named Joseph A. V/ell, May 
Finney and Roy Newton as trustees, and the flcst tv/o were named 
as executors. 

Checks in evidence disclose that Mr, :;tone, as executor of 
^■^rs. Baldwin's will, paid appellant the following sums on the follovf- 
ing dates: December 13,1938, ^300.00; #400.00 and ^600. 00 on Dec- 
ember 20 end December 24, 1938, respectively; and i|900.00 on the 
first day of each of the months of Jmucry, February, March, ■'^pril 
and i'la^' , 1939. -^'he record indicates thct sppelltmt's awnrd as a 
child \^as ;94000.00. Mr. -^tone testified th. t the checks for HOO.OO 
cjid ^600.00 resj:ectively, v/erc payments on the ?v.'; rd, snd that the 
other payments were in anticip-tion of earings and dividends of the 
corporation, under the provisions of the will; thrt during the time 
he paid appell'nt #900.00 per month he ?lso paid each of the gri^oid- 
daugh'^ers #300,00 per month. These payments aggregated iflSOO.OO per 
month, to which he testified he ?nd sppellont had agreed, «i.iiiliB!L'***ll 

In June, 1939, the corporation owed a Peoria Bank i*65,000.00. At 
a meeting during thrt month, of the bank officials and the directors of 
the corporation, including appellant, the bank officials insisted that 
the corporation was losing money, and that the operating expenses of 
the corporation should oe reduced. They did not feel that Mr. -'tone 
sh0;Ad make payments to appellant and the grand-daughters, and that sale 
rles should be reduced. Payments to appellant and the grand -daughters 
were stopped, and salaries vjere reduced. AppellfJit's salary of $75.00 
per week as a feature writer w-s reduced to ^^25. 00. ^'^r. -^tone testi- 
fied th-t some times she did not write anything for the paper for two 
or three years, but drew her salary. Payments of v25. 00 per week to 


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-©all no GO. OOdI J^iiB OC . '.U^SI 'lecfa^oeC iesJAii j^i 

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iliqA ,riDiBM ,xtfl 1*1 (?©■"•! , tt'?i;n .1 lo arfjnom sricr to rioa* Id x^h Jani't 

00.00^* lol siaerio »rf* J^a^r Bsll/^as? snoJ<i .ti4 .OO.OOOH- 8«*r fiXid^ 

lzd3 Me ,l)ift«s •xtf no «ftn»iBX»<I »i«*' .^Xavisosjafli OO^-OOQl Ans 

9rfJ Ic aJ&ttoJblvil) B^na asnltas io noi?-?qXol*fls nX ifnsw BJnau^q asilJo 

-Bnstg Sri? lo dOB9 JBXisq eaX» td dinom i»q 00.0061 jrnXfsqqa 6Xa<; sn 

neq 00. DOS It b^i^ ^iS-flstot^q o<?«df ".riJ-nom* naq OO.'OC'St' eTWi«gUM» 

^wil i.ii 1 1> ,/>9»'ijjis J!>Bf{ JmiX#qqs J&i!« »rf-|>«lli riolriw olJ ,ri*fio«i 

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"ic 'isafidqxd snXtfPTeqo siiJ todt £>nfl ,^snofii gnXsoX a-sw noijaioqaoo »riJ 

•fic Jftri* X93"i Jon foXfe •^T .f>90uf)9T: 9d iiXworia xio^J'^Toqioo '•il* 

^j y«rt > X)iV5 .fcteJ^dgWRi-fifUBts 9ri? fins JnnXXtqqa cJ aitnamvBq ^Ma bluotia 

3isdilsua£>-f>rt.3ta wlJ bn& foaXX^qqB oi nia^mx-^i .Ij60ijl)9i 0d JbXuocia aein 

OO.evI io vx«X«fl 8**ftiXI»qqA .hddubfii: snstw asi^^I'^a ijne ,Z)*»qqoJs »a«w 

-iJsgd- snc. .OO.oS^" oi JbsoufeR- lA/Jael i- 8.3 3te«w rrsq 

^ ■■:^ lol tsqisq snj 'toI gnXccfiin^i ^d'i') ;:6 »ria aoaXS' amoi *3dJ JB0II 


each of the grand-daughters v/ere la tier resumed. Numerous letters from 
appellant to i"^r. Stone end to her mother asking for money. Indicate 
she was frequently In debt. Mr. 3tone testified that after the meet- 
ing et the bank, she continued to press him for money, "nd gave him 
list of bills she owed, aggregating |6209.35. Some time in the 
latter part of the surnmer of 1939, one of her present attorneys asked 
the president of the bank if the :^mount e pellant received from the 
newspaper could not be increased; -nd at a later conference gave iiim 
a list of the bills owed by appellsnt and asked h m if they could not 
be paid with money from the Star. 

Hon. Joseph E. Daily, one of the Judges of the circuit court of 
■t'eoria County, testified that in the 3u..mer of 1939, he had a conversa- 
tion with appellant in his chambers at the court house; that she said 
^he was not satisfied with the money she was receiving firom %'. Stone; 
that she was in need of money, did not aj^rove of his dischsr,_,e of 
certain employees of the Star, and did not consider him a man of finan- 
cial ability or who could run a newspaper; that he had hnd no exper- 
ience and was damaging the business and the property; that she asked the 
witness If there was any way the court co Id t;-Ke over the business and 
remove Hr. 3tone as trustee; th^-t he told her there vas no way for the 
court to take over the management of a newspaper, but that if there was 
gross Misraanagerapnt , it could only be he rd in court by filina- a petition, 
pnd giving notice of a he-ring; and that she did not mention anything 
about the stock. 

erle olane, owner of the Kvanst on uewa Index, and foriiierly co- 
publisher of the i'eoria Journrl Transcript, testified he had knovm ap- 
pellant for many years; thrt he talked with V)er In July, 1939, at his 
home in i:.van8ton; that she said she had definitely determined to start 
suit to break, her mother's will; that he told her it w b unwise, and 


e.7r;Jii'.nj ,Y9nci5' «ie'1 giiiaCa/n lerfJom Tcati oi i)CU3 ano?c. .-xh oJ iiiRil^^c 

>v«3 9-3«i»^9lnoo •xfttfr-.I c ae f)n^ jiiaaraToni 9cf Jon feXuoo ^sqaqawsfi 

,ir-':(i& »fi;j mo^l ^enoft liJlw bleq sc' 
' ;oTio 3x1-? lo seglii/t ©tiJ lo fjno ,.^iBVi .a xiqeao^ ->ft61I 

;,iia JB/iCtf ;§euori ;fiifOS ©if it Jl eiatfaicflo airt nl JrtaX^iKiqjB &tlK noi? 
;?r;oj^ . ' il ^oivXeuiai im%' am \scvaM edi si$ Jbx hsllal^&u #»« 

■■^.''" : ii bBA Bd *Ad» ;^£3<;;-3Ci2^viri ;,;.in '- I' ■ • - - ' iiiii i • if ■ r t ^tirtT'ttt " 

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■ • '■ ■ ■■■;:'. 3il-r law xa^-- ■■■::■ 'il enaa^lv 

■...!."" :i^- .ci'ii-x jo;i •.-■n. ^^.c jT'iii; iiiu' ;';^i"!rc«d s^ lo •oitfoa gnivis fin- 

. iocJa »rl5 ;futef.Q 

'" "/ - - : -. - - .. . ^.. - —Tjta^ ijaaor lol *fia££9 

i; i.i:.-'?jj 'J.J ',_^o..'..'aii^i'D £>'-ii 9nci m si-; saw -sxiJl ;ctO'?ftn£T2' fH'-'SMr 


he thought there was an easier way out; that Ut. Weil had told him 
he had in his possession the old stock of the 3t :;r in aooellant's 
name; that if tnat wexe true, she would not have to go throu^ a 
long series of trials on the breaking of wills; and that she made no 
reply, lie also testified that Mr. Weil told hira in the lat + er's 
office in 1929 or 1930 that he had in his possession the old Star 
stock in apoeliant's name, and asked the witness if he T7ould be 
interested in a managerial position in the Star if Mr. Weil wanted to 
use him there; that in January, 1939, he had another conversation with 
iir. Weil at the Jefferson Hotel in Peoria; that wr. Stone passed through 
the lobby and Mr. Weil said to the witness: "Weli, Merle, some day I 
am going to get that boy. You know I have the old stock of the Star 
and that is my ace in the hole, •• Aopellant and Mr. v;eil admitted having 
conversations with the witness, but denied that the things to which he 
testified were said. 

A letter of July 15, 1^25, from anpeliant to Mr. Stone, says: "When 
the transfer of the stock was made to the Board of Managers they W'-re to 
have two shares of stock. Where in the world did that hundred 9ha3"es 
come in. This thing has certainly been handled in about as unbusiness- 
like manner as possible." ?.*r. 3tone testified that he wrote her in 
reply that the managers were each to have two per cent of the stock, 
or twenty shares each. The record shows no further inquiry or protest 
by her as to the issue of the 1(?0 shares to the members of the board of 
managers. Another letter from appellant to Mr. Stone, of April 21, 1933, 
says she wishes something could be done or had been done about re-purchas- 
ing the stock of one of the board of niana;:ers who had just died (Hoy 
Newton); that it brought in a foreign influence, and there should have 
been an arrangOTient so that the stock could be bought back by the owners 
of the paper at the death of the original owner. 


sild blot b-'d^*' ,iU *jBrf* i^uo y.f.v lexsae ob aav excfft ffiv,L'Odt 9f< 
?y.rrf ^orr .^. .,..j./ti' c^»w t^u'i;)' 12 Jjsri,. 

Git - iQt&leoq. Islt9-gsifr bf^fznr^int 

'•^^--rf mrrf fi-ff hit blTDi?-' ^rfS- nl ©teriW .2Joo;ta 'to ee"-tl9 oTrt bv^iI 
i£dcir.'jri~fit tt/orfi? srroh nr-r':! ts-sri 10 saob ed fclij 00 arriflcTeflio* 6»dBiw oils «x-88 


still another letter from appellant to her mother, dated October 
20, 1936, states: "Mr. Potter who called on you to buy the Star called 
on me yesterday. He was in earnest, * • • Ke expected to find a flib- 
berty jibbert who would not be interested in the paper, but I told him 
you were the o^jsner and what you said went, and that was that, « 

Letters to appellajit from Mr. Stone on June 34 find June 25, 1935, 
advised her of the terms of the cancelled contract between her mother 
and the board of mamagexs, and the new contra ct giving then the option 
to purchase the stock of the corporation. Her reply, of June 87, 1925, 
and a letter to her mother in the same month, disclose that she made 
no objections or protest about the option to purchase, given by her mother, 
and said only that she did rot like the ten year extension, but that those 
in power could always handle the situation if necessary. 

On June 12, 1931, appellant wrote iir. Stone regarding an audit. 
The letter says: "It is a justifiaole expense; but whenever I mention 
the Star or the manner of its conduct, mother has always turned a deaf 
ear, and after all, it was her paper, and she was entitled to do as she 
liked. « 

By a letter of July 2, 1925, from appellant to her mother, she sug- 
gested the discharge of Mr. Weil from any connection with the paper, in 
terms very disparaging to his integrity, 

Helen L.Baldwin, Margaret 3. Baldwin, and their mother testified 
that at the time of the funeral of F^mnie G. Baldwin, appellant said she 
was satisfied with the will, and the maragement being in Mr, Stone's hands; 
that she advised the two girls to take out insurance naming their mother 
as beneficiary, as in the event of their death she would have no share 
in the estate. Their mother also testified that appellant said she was 
taking like action for her friend, J^iss James, for the same reason, 
Margaret 3. Baldwin also testified that appellant said nothing about 


ojtrf fiXotf I 9irQ ,ic*QAq arf* ni l>»#e©TE©^ ni ad Son bli/ow odw *T»cfdit X^'i^^o 
"*.■-': i:9fnro •£!* eaew uox 

'C9f{;f0ffi tef{ ntoew^ed ^otit&noo bellBOttBO erft lo so? :9)ri bacirbfi 

/jid-qc Siv'*- Kerii- snivis to jBt*noo wan erf Hfijera lo biBOd •£!# bn« 

nroffl tflU'i di'Ofa a&rf o* xttS'el b Jbflij 

g/fjora • .forioiijq 0*" noitqo di, tsei^oiq 10 anoi:foetdo oa 

*ifd ,noj:en«it'xfi» rt«e ilt S3(itx ^on Jblft orfe tadt x^t^o htea bas 

«vrt«fi89d«fl ix noi^ittitJts •H^T oXbOBif bx-hvLb JbXi/oo aiewoq rri 

b'TjBget ftfic 9toiw tfTUeXIeqqB »XE9X ,SX eflirL flO 

^v©n»rf? an©qx» eXdjsXlXirex/t * ^rfT 

-*8 ©tfJ 
9fie l)aB ,T©qjEsq xari g..; 

" .ceXiX 
i ,88eX ,S \'Xi;L to M.+ JeX « xE 

.v^lTgajni eXri o* srtiafitJBqaib \fv ajaxeJ 
frlwbXisF: .c ts-rjBgTjBM ,nlwbXjBfi.J neXe- 
:^ -OBXXtqqfi ,ftiwbXi?e . If^-xetvj'i sdt \o BUlt tdt ta tedi 

;3 rijael ?nev» »dJ nX 8£ .xxaXoXlensd 8£ 

in TloriT .stiiJeft ftdt nl 

.-■o^i-'-^'! ^-i:..: ol noitaa ea[XX 8ni>i.t;3- 

tij:)(Sii gntd&on btse. tnflXXvqqi) tijdt betltt^tt o«Xi; nXwbXaa .8 (TeTAaYjBM 


stock ownership; and that later she net appellant in Chicago in the 
fall of 1939, and that appellant talked about breaking the will, and 
nothing else. On March 9, 1939, appellant wrote the grand- daughters a 
letter in which she said: "I hope you've put your insurance through. 
Don't forget what I told you. A3 things stand now, we three are the 
only ones concerned with the terms of the will, at the death of any one 
of us - tne other two divide that income. You cannot protect your mother, 
your husband nor your children except by insurance." 

Frederick K. Oakley, editor of the Peoria Star, testified that after 
the death of Fannie G. Baldwin appellant called him to hei^tiorae and told 
hia: "Bill, I w ,nt you to know that was my mother's will," and that 
furtht?r statements )y her indicated she was satisfied with it. Appellant 
denied practically everything testified to by the witnesses for appellees 
80 far as it concerned her. 

Federal income tax returns of the corporation for the years 1918, 
1919, the amended return for the year 1920, and the return for 1931, each 
show Fannie G. Baldwin as the ov-ner of all the shares of stock. The first 
two were executed by Fannie G. Baldwin, as president, and M. B, Finney, 
as treasurer. The last two were executed by Joseph A, Weil, as vice- 
president and May B. Finney, as treasurer. 

The corporation records show that appellant executed waivers of notice 
of stockholders' meetings held on October 4, 1920, Jind July 11, 1925; 
waivers of notice of directors' meetings held on October 1, 1920, November 
22, 1920, February 31, 1929 and March 31, 1939. The same records s;-©^' 
that all the stockholders were present in person or represented at stock- 
holders' meetings on Woveraber 32, 1920, July 11, 1925, July 29, 1926, 
July 12, 1927, January 6,1928, February 21, 1929, and June 36, 1931. Fox 
the stockholders' me tings on Jamaary 6, 1928, February 31, 1929 and 


.ban ,XIiw ©rft anl±«;?-T'. ' i^Ieqqa Jjarij .y£6I lo . 

.ffH0OT(f?' ix/ox i-irq aVx/ox »qoif I" ',b.fs^e grfe doiriw ni x^ttel 

yfio y/t£ %o rti'^el) erf^ #ii ,IX\fcw orft !to em^rsJ ©tf* d^lw fccnieonoo garto yI::o 

. ? '^!7s:Ttrr -^ 'S'.;~t^ rrsTjbXiffo TZfot Torr ^iiisdex/rf Tuoy, 

bLo- ;orfgteri o . . rij8lX«>QFqjB itl'-^MrS , 

tBfft f>n« ",IXi.w s'Torf^OB! Xf^ ejsw *«rf* »or :mtti 

^*i^S.If^oas; To^ es&r-^'rtS'X?' erf.^ 3iax"?:x*«9* r^rtij-^S-yieyQ ylXfioi^jwBi!;. _ ib 

??"ifift« V- -. . Tiji wode 

^T-^r-.c" . '.rrr, ,trreftXe»tQ 8.fc ,n£WbXi;a X eii'n:-^ — rrof^xa enaw owt 

. . ,.'\ rfcreeoT, yd fc&i-*;cvex6 eiev? o.t . .^'cx/^jsttT* e« 

.'A-STwese-XJ ... , ,:. ^nX^ .S „....,_ :.^9bX«»Tq 

©oiJort ^o S7.f.v XiiTT bstifosxft ;fnk ::!']' a a^^ tMi worfa ebaoofti noXtaxoqToo orfl' 

;ci£ I ,. a, •: u :.fi6 ,OSfe! , do^oO no iXerf esn/tanin 'pa^hlorfyoote lo 

lecJ^^-^vor -0?^9X ,X T:!»do#j)0 no bXerf asnll^ftoi •attotoe^rlX; ... .-^:_.; j eTflvi^w 

-. ^Bdi 

.-- , ; - - A- :?»rf!»»To;; . -. •rabXori 

, .-. _ , :; sfii/L Jbn£ .GE^.- ,_, N^ifli/ida-? ,8S9X,8 ytiJXinjBL , .:.,. ,;^^ yXi/T, 


June 26, 1931, appellant executed proxies stating she was the owner 
of one share of stock. Although she was absent from Peoria the most 
of the time from 1918 up to her mother's death, the above facts de- 
tract from her claim that she did not know the activities of the 
corporation during that period. Furthermore, the law imposed upon her 
as a director, the duty to inform herself and to know the corporate 
business and affairs. 

There wus inventoried in the estate of a^-rsellant ' 3 father a 
library in tne home, of approximately 3000 volumes, annraised, with 
book cases, at $10,000.00. Mr. Stone testified appellant add© no 
objection to the inventory. "i'he will oT^*i»-x^^Be»e««f?rte left all of 
his property to Fannie U. Baldwin. Her will bequeathed to apoellant 
her furniture, books, etc. Appellant testified the library was hers, 
given to her by her father, Charles B. Smith rwid Sleanor Burkhart each 
testified in substance that Mrs. Baldwin told the witness the library 
was appellant's, but the latter testified that on another occasion they 
were talking about the opera, and Mrs. Baldwin^gave her all those sets; 
that she did not take them away because she did not have a proper place 
for them, but re-produced and sold the steel engravings. During Mrs, 
Baldwin's lifetime she gave 3ir. Stone several sets of the books. !She 
second appraisement bill in her estate listed and valued the booksAt^A^ 
After her death, appellant gave Mr, gtone other/^ of the books, and gave 
the remainder to the Bradley Polytechnic Institute of Peoria. Although 
appellant testified she never saw the ^iprraisement bill in her mother's 
estate, we think the facts show her source of title was through her 
mother's will, and 9 MW ^\mji t Amm J f Hi ^ mlMWi that she adopted the provis- 
ions thereof intentionallyy,^until h^r income from the trust was stopped. 


■'Qflwo f>t'i saw Brfe gfll^ivJe ssixotcf foeJ0o©x» i'milXeoqA ^ICei ,3S ani/T. 

h :: • ' -fa rfatforiiMA ,ioote lo ftiijerfB eflo lo 

~&ij aiafi'i svoui^ 0G.> ^fid-jBaij ti'isrfc^om leirf o;^ aif 8I8X nioa^ tttztt Bsit ^© 

iylvl*o« «ri* woiajf too JbfXfe #fCs tijxf* niislo T6d moxt tUMXt 

CJf: «;i)i: 



1 »«t$fl& 


3»W #ei: 

1 o# 0«tri9 

■.'-i/r *ircf ,-l'#£MiXX«^j8 tis» 

txio^i ^tlfaiiia 9dS ot xabalsmf.r edS 
Tert ftjtte beilitatt #a£XX9qq« 


Although Mr. Weil denied making the statements attributed to 
him by the witness Merle 3lane,he did not testify that he had turned 
over all the books, recorr^s and documents in his pcr-essivn, or that 
he did not have in his possession the certificite for 348 shares of 
stock on the oDccasions Mentioned by Mr, Slane and Mr. Bartlett. JTo 
person present at the signing of the two contracts and the stock cert- 
ificate in his office testified to any fact or cirouKBtanceB at the 
time they were signed. Nobody testified that Fannie G. Baldwin ever 
delivered any certificate for 250 shares of stoek to appell?-nt, or 
that appellant delivered such certificate for cancellation, or that 
the certificate for 248 shares was delivered to appellant by anybody 
authorized to do so. Mr. Stone's testimony ghoivs t^at llrs. Baldwin 
understood the contract with appellant and tne stock certificate for 
248 shares were to be kept with her will and be a part thereof. IJo- 
body testified to the contrary. These facts were peculiarly within 
the knowlede,e of Mr, 'Veil and there is nc showing that the transaction 
was a privilet^ed communication. He was a competent witness, (^ard v, 
Dolan, 330 111. 371; Dicker son v. Dickerson, 322 id, 492.) fhe well 
recognized rule is thxt where a party ;ilone possesses information 
concerning a disputed fact and fails to bring forward that information, 
a presumption arises in favor of his adversary's claim of fact. (Bald- 
ing V. Belding, 358 111. 216; Prudential Insurance Co. v. Bass, 357 id. 

To enable plaintiff to recover in tl'is case it was incumbent upon 
her tc establish there was an absolute and irrevocable gift inter vivos 
of the Gtock to her by her mother; that the donor had parted with her 
dominion and contrd of the stock; and that there had been such a de- 
livery to apoellant as to put it out of the pc^er of her mother to re- 
possess herself of the property iciven. ( Buchy v. Hajicek, 364 111. 502; 
People V, Csontos, 275 id. 402.) The burden of proving the alleged gift 


.■-•.-iSraaiii/O'L.: b^lti*. ,. i .' 

iiiwi>j[«e: ■ .'Ltiiii^t^Cfdoll .k^^a^^i^ as©'* , \*4;^. ©mx ' 

*jB©iii; *■**•«& i-aojj'a «iij- btm &ms -^iis boot9HBiML 

,ia.u:;v.' ^XTjBiXyoao; sxafv.- ei^oi/i ttatt^ri . ^:sj:)7tnoo ©d4" o* lieilttaej" xi5>o<3 
'£snjj«;5 9;it J^dJ gniwoffe ■ ^.ixert* biift Xx»W *tIiI ):o #sil)©Xwoa:i 6dJ 

.:9* .bi SEE ,rfoei©3loia .v naeTteafciC . . - XcaQ 

■ .i)i?i>si-jiolQi aoseer-a'ac,' snoX£ TCf-i-Q -^j ©xe/lw 3-.'..:ii ^ i wxi;i ^#sxngoo©i 

-> Bit&Lo 'a^xxxieroivbic, airi lo xov£!i: ni eeeixfi noitqatueaxq -- 
Votl ,*$t' . :0 ©onaxi/anl X^itn^fciri'^ jaXS ,XXI 831 t.ftnxi>X9ti .▼ -gai 


+ rTl tils »Xdf4COV9iii bffB ©JuXoedw run saw 9X9rf* r.cXlcte.tefr jiif ts :'. 

r.oii^. rt©©d fejBif s'tarit if^rf^ bnn ;>loo^e s»aj^ 'io^rtao btm aotnimab 

oi T©rf*ofn 1-1.1 ^o ^o'^'oq erf? to ti/o tt tijq o* eii ;ffiJEXXecQi3 oi x'^^^rtL 

jSOri .XXI *8r. ,-i90ii;.tiH .v T("OJ^ ) .n«vl,>i ^^.txeqcxq srl* Tto ^tXaexed seeaeOQ 

r)-"liS fosjjeXX/; flxl* anXvoTiq "io ne&Tud erfl" (.SO* .f>i aVS .aoifcoeO .▼ eiqo»<! 


is on the donee wno must prove all the facts essential to a valid 
gift, and the great weight of authority is that the proof to sus- 
tain the gift ttust be olear and convincing. (Hothwell v, Taylor, 
303 111. 226; Bolton v. Bolton, 306 id. 473.) Mere possession of 
property by one claiming it as a gift, after the death of the alleged 
donor, is universally held to be Insufficient to prove a valid gift, 
(Rothwell V. Taylor, supra; People v. Polhemus, 367 Id. 185.) 

Under the evidence and the apnlloable law, the chancellor was 
right in holding that appellant failed to e3tab:.ish her right to the 
248 shares of stock, and it follows, of course, that she is not en- 
titled to the dividend stock of 744 shares. The decree dismissing 
the complaint for want of euuity was correct, and is accordingly af- 

Decree affirmed. 

ftf.C,:v itfTsr?^'^ s^txst &:iS iJuif evoTcr feum oriw eanofa sriJ no ex 

'^'O not 3^*i??0'!7 '!'""■: . , . ■■■ itol'Io' . cf!'^' 

to tffjRw loTc rnxrlqnioo ad3 

,btm'XkJ:^3 ©s'rosCT 

GEN. NO. 9S10 



ELi-iER J. HUMBERT, as Adminlstriiitor 
of the Estate of John Elmer^iwinbert, 

FRANK 0. Lq^EfHi, JAMES E. aORi4/\N PUd 
JOSEPH B«^EMING, Trustees of the 
Chioagp<'^Rook Island end Pacific 
Rall*H^ Company, a coiTporatlon, 





DOVE, J.: 

Thlfl Is an pppe-1 from a Judgment of the circuit court of Henry 
County for M800.00 on -^ verdict in fpvor of appellee agplnat appell- 
ants, trustees of the Chicago, Rock Island and Pacific Railway Company, 
on account of the alleged wrongful death of appellee's Intestate in a 
collision b tv'^en the decedent's automobile nnd the locomotive of ap- 
pellpjit's passenger train at a grade crossing on State Street in the 
buslneso district of the City of G-eneseo, at about 3:00 o'clock A. M. , 
i>©cember 15, 1940. 

State jstreet runs north and south, i'he railroad crosses it In a 
slightly northwest and southea-t direction ; t an angle of 15°, 34'. 
The street is about sixty feet wide, and the distance between the curbs 
is 51.5 feet. The railroad rlght-of-wny is one hundred feet wide, with 

/ n 


SS .OH AQ oi: 

...i ..^ V w a- n'i 

i 9rfJ "So aasJsinl^ 

( olttOMl baa bcuij. -« ,^. -.^..- 


: .L ,aV0G 

^«9H to J-xuco ?lwo*ilo 9r(;3' to Jnam-aiut ^f" Kont I eqqs a?; aJt BirfT 

-ILuqq!^ ffani'^^fl ssllsqq'^ to lOT^.t cil folbi'^r '^ no OO.OOS^If' rret xinucO 

•iimqmoO vswII^^H oltio&''i bna baelel iocH ^ogi^oidO srij to »99iBuit ,aJiie 

/^?8s:rnl R*6sIi«K7qe to rifesL iMlsnorcw .69;ysXIf! 9dJ to JnwoooB no 

:r:ccoI sii? £n?> alitJoncjLX £*5n«£eC9i> sd< na.:vj tf nciaillos 

«x1.3 ni Je'n-oc: ^tstft- no gniaeorio e£>f?ia .a Je nln-x? is^naaaaq a'Ja3lI»q 

JolnSelfi eaanlautf 

.p^GI ,51 •xadinooeJ 

: :iJ; iti a9,-iao«xo iiAO-s:! Lst • ad^ .xi;»xios ftna ri^ion anin JasiJc; e;Jt^Jc 

.'R ,"SI to •laxia fos ;JH ncIJ09T:lf^ ^-b<m1;Ji/08 f)n.o JaavfriJion ^IJdjjlX* 

iiO'iwo ariJ n«9w;f«<J d©nnj8.tE! sricf f^n^ ,dl}Jtv Jest x^xia iTuocfn al ;f»a'sJa artT 

,a.!>lw ;J<iet Jbaniiruurt ano al ^-v-to-;Jxl£li fiacntliai anT .Jaat 8.16 al 

four tracks crossing the street, the south one of vhlch Is the east 
bound track, the next one north is the west bound track, and the 
others are switch tracks. There are crossing gates, operated by a lever, 
on each side of the tracks, and a crossing bell, operated by a cord, with 
twenty-four hour vT^tchman service. The gates »nd bell are manually 
operated by the v/atohman from a shanty south of the tracks on the west 
side of th^ street. The decedent's automobile was going north on State 
Street. He sat on the front seat with Owen H. whitted, who was driv- 
ing. As they reached the west bound railroad track, a fifteen oar 
through passenger train from the east sti^iok the automobile about its 
center and both men were killed. They and the automobile were carried 
on the front of txie locomotive to the place where the locomotive stopped 
which was about three quarters of a mile farther on. 

The complaint alleges due care and caution on the part of plain- 
tiff's intestate; that the view of trtins coming from the southeast is 
obstructed by buildintis extending to, or nearly to and upon, the rail- 
road right-of-way; th'^t by reason of the frequent movement of trains .-md 
the obetmioted view, the crosoing is hazardous and unusually dangerous, 
In recognition whereof the defendants maintained the gates and kept a 
watchman there nnd that their so doing was well knovm to the public and 
to plaintiff's intestate. This is followed by allegations of negligence 
In operating the train at a hig^, reckless and dangerous speed, having 
no regard for the safety of others, with no bell rini^lng, whlsile sound- 
ing, or other warning given; and in negligently failing to lower the 
gates until the decedent's automobile had enter- d upon the crossing 
directly in the path of the train. 

The £ui8wer denies the allegations of due care and oaution, obstructed 
view, end the alleged acts of negligence, and alleges, on information and 
belief, that v.hitted was driving the automobile under the guidance, 
direction and control of appellee's intestate; that the Irtter's death 


,£iO •Xijiittc'l ftllii; .S'liiw ^UOda EBV ilauUiw 

iflJniair i«i0l) 9Xi;f loe-xsilw noIJlosooei nl 

.w cj «.o;3i IX»w sr,w .^i.coX. oa ilftrf* inAti bt» rxadd; OfiiodoifAtr 

a^ica.. :tae Mfl sXlcfomo;:*;^ a* Jnotooffib adJ 119tw B»^.aB 

• aliiiJ 9ti3 lo dir iU \l90Mij> 

,cQae.biM^ 9cU TittJtJftw oiicfooojtfB ari* aalvXii). wy /feaWXri " - .laiiad 
.;- -..., -i'lastfai »iW Jfiidl jatfsJaairAX a'taXXtfiqi^ lo XoiJnoo Dih: iioiiotijjb 

was the direct and proxlm&te result of his oi.i.-n negligence and failure 
to exercise due care and caution for hie own safety; that the defend- 
ants, through their servants, gave ample notice and warning of the approach 
of the train, and that plaintiff's Intestate, In entering upon the tracks, 
assumed the risk of any injury; and that he was violating the provisions 
of the statute, (111. Rev. Stat, 1941, chap. 95i, sec. 146a) by allow- 
ing the operator of tne automobile to drive at a speed greater than was 
reasonable and proper in regard to the tr-'ffic and use of the way, and 
like provisions of an ordinance of the City of Geneseo. 

A wilful and wanton charge in the complaint was stricken on motion 
confessed by the plaintiff, and the cause was consolidated with a suit 
by the administrator of Whltted's estate. At the close of the testimony 
for the plaintiff, the railroad oompt4iy, on its motion, was dismissed 
out of Uie suit. 

East of State Street the railroad runs straight for a distance of 
four miles. There is ;:. police station on the east side of the street 
south of the tracks. It Is ten feet vide north and south and twenty 
feet long east and west. South of the police station is an alley eleven 
feet wide. South of the alley eleven feet wide. South of zhe alley the 
east side of the street is built up solid. The northeast corner of the 
police station is 33.1 feet south of the center of the west bound track. 
Measuring south along the center line of the street from the center of 
the west bound track, it is 48.5 feet to a point directly west of the 
north wall of the police station; 60.6 feet to a point west of the north 
side of the alley; and 72.5 feet to a point west of the south side of the 
alley. Looking east from the center line of the street, the railroad 
tracks are visible for the following distance: Throu^ the north side 
of the alley on a line .6 of a foot south of the south wall of the 
police station, 960 feet, except that portion of the tracks obscured by 





'^lio lo ;t(jt 


-^•sagsTt n.f 't«qoTq Jbaa olcfflnoaarx 
9^Ailo notf new 

motllat s jflj lol 

?icl:t no nci: .avXia aif»t 


Jafift s<soI ^8«1 

. iw i»9\ 

: llud Bi d^att^a 9{tr to tbls ^Mt 

; 10 tf:? . ..loq 

suoB ^niiuaatJl 

i lol aXtflaiv ooB aj(oa<st 

sdcf lo sfli 
Id rf*/. 

to d. i»niX j3 ao \»ILb •dj lo 
;eoxs «;7e9l OdG .noiJaUt ooiloq 

the police at: tlon; from a point thirty three feet south of the center 
of the west bound track, 1600 feet; rnd from a point tijenty five feet 
south of the center of .he same track, 2585 feet. From the west bound 
traci'. £ train or the head lltiht of a train can be seen the whole four 

The street v<as \'ell lighted at the railroad crossing, with four 
street lltjhts in the Imrnediate vicinity north and south of the tracks, 
and there was no sno> or ice on i he pavement . There are three windows 
in the police station one ner-r each of the northwest nnd southwest 
corners, and one about the middle of the north side. The door in the 
west has a glass upper panel. 

Plaintiff's intestate was familiar with the conditions ond surround- 
ings, having been for some months a tank wngon driver for the proprietor 
of a bulk gasoline business, and having frequently delivered gasoline 
to the filling station Just north of the railroad tracks, v/hitted was 
also familiar with the conditions nnd surroundings. He was employed in 
two restaurants, and frequented the police station, staying some nl^ta 
from midnight until late the next morning. He was very deaf, so much 
so thet hie nickname Indicated his infirmity. 

The regular speed of the trdn through Geneseo was seventy miles 
per hour. On the occasion of the accident it was traveling ot about Its 
usual speed, or a little more, having lost twenty three minutes at Ottat^a, 
due to waiting for nn ambulance to take a sick passenger off the train, 
and had made up about five minutes of the lost time. The locomotive was 
equipped with nn electric liead light, and the engineer could see 1000 
to 1200 feet ahead. The whistle was blown for crossings enst of ^tate 
Street, and between State 3treet and the depot, one block east, it was 
blown three times, and was blowing when it struck the decedent's auto- 
mobile. The bell was ringing continuously from the time the trnin left 


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Bureau. Both the whistle and the bell were loud sounding, 

Shortly before the aooldent, /lllinm Daniels, v;hltted end 
plcintlff '& intestate came out of a restauront on State iatreet in 
tiae second block south of the railroad. Chitted ?ind plaintiff's 
inteeti'te got into the front seat of the letter's or^r, Whitted 
taking the driver's seat. Daniels was the first to leave, going 
north in his oar. He testified that he was driving between fifteen ond 
twoity miles an hour, and did not look back until he had crossed the 
railroad tracks, and then saw the decedent's oer coming near the stop 
lij^t at First Street, ib out two hundred feet south of the tracks, but 
could not tell v.hether it was coming fast or slow; that the grtes were 
up, and as he got on the tracks he snw the train coming appi»oximately 
1200 feet away. This distance agrees with the testimony of the engineer 
pnd fireman as to their seeing him cross the tracks. 

Fred Fricke, ■ merchant police, and Oiayton Jaquet, night patrolman, 
were sitting in the police station. Fricke was near the southwest window 
and Jaquet near the north window. Each testified to seeing the lights of 
the decedent's juitomobile as it went by the station, and the reflection 
of the head llt^t of the train. Fricke testified he sa,w the collision 
and that he and Jaquet ran across the street to the w-tchman's shanty; 
that the gates were up and did not come down at any time, but after the 
collision they came down a trifle; that he asked Lawrence Oberle, the 
watchman: "i-llke, what in the world is wrong?" to which Oberle replledj 
"I guess this is tlie pen for me." On cross exarainotlon he said he did 
not ppy any rttention to the gates, rnd could not say whether they were 
up or down, - that he didn't go down there toaee.* On redirect examina- 
tion he said he wanted to make r correction in his testimony, and re- 
affirmed his first statement that the gates were up, and were not down 
at my time. Both Fricke nnd Jaquet testified that when they first saw 
Oberle he was standing with one hnnd on the gate lever nnd the othea* 
hand on the bell cord. 


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iiJo 'Sri: voX ©Jbs arf* «c) Ati'^d eno ri^iw gfiiXjnratfa aaw ad aXiarfO 

.Jbioo XXacT ad;r no band 


Oberle testified he sew the train ooialng about two miles east, 
f-nd received signals of Its approach when It was about a mile away; that 
at that time he started lowering the gates, but let a oar through from 
the north, and then started ringing the crossing bell and lowered the 
Stfte Street gates, rjid then the Center street gates, one block weat; 
that when he got the State Street gates dov/n the train w as between there 
and, the depot, and that it went through before he started to raise the 
gates; that he did not see the collision but heard the orpsh, and did 
not see any automobile coming from the aouth; that after the accident 
he raised the gates ajid stepped outside. He denied making the state- 
ment testified to by Frloke, or saying anything to him, and testified 
that Frlcke never speaks to him, and that they had not talked to each 
other for three or four years. 

Jaquet testified the train whistle first attracted his attention, 
and he could see the reflection of the head light on the tracks a long 
way back, end that It was visible at the crossing; that he had driven 
an automobile for thirty years and had observed the speed at which they 
travel; tiiat he saw the lights of the decedent's automobile as it ap- 
proached the crossing, and that in his opinion It was traveling between 
forty-five and fifty miles an hour; th .t he did not see the collision 
but heard the crash, and ran across to the shanty, but could not tell 
vvhether the gates had been up or down; th t they were about three quar- 
ters of the way up. and the top of the gate was moving. His further 
testimony tends to corroborate Oberle 's denial of the conversation' to 
which Frloke testified. 

Both the engineer ajid the firemen of the train saw the Daniels 
car cross the tracks, about 1200 feet away. The fireman, ^"ho sat on the 
left hand side of the locomotive cab, saw the decedent's car lights as 
it passed the alley, and as it went onto the croaeing. His estimate of 


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as a*d;sll -seo a»;f«3i)S09B ad? w^a ^cfao svlJoatool srijr lo eJ&ia finad n«X 


Its speed, to x^diloh he testified, from observation of trnln speed- 
oraetera while vj^^tonlng automobiles traveling parallel with the train, 
iWa^ th; t decedent's oar was travelinj,; about forty miles tm hour, ~ not 
leaa than thrt. The engineer, who sat on the right hand side of the 
cab, did not see the decedent's car before it was struck. None of the 
witnesses, except Oberle, testified to seeing any antomoblle coming 
from the north. 

The Btetute invoked by s^^pellante, and the ordinance of the City 
of Genes eo which was introduced In evidence, each provides that no 
person shall drive a motor vehicle, such as decedent's car, upon any 
public highway at a speed greater than is reasonable and proper having 
regprd to the traffic and the use of the wsy or so as to endanger the 
life or limb or injure the property of any person; and makes a rate of 
speed exceeding twenty miles per hour throu^ the business district of 
any city prima facie evidence of r. violation of those provisions. 

As a general rule of law, it may be conceded, as claimed by appellee, 
that where a railroad maintains gates or other safety devices at a cross- 
ing, it assumes the duty to use due c^re in their operation, and a fail- 
ure to do 80 may constitute negligence. It is also an elementary prin- 
ciple of Uie law that in p. oaae of this kind, the burden of proof is on 
the plaintiff, not only to siiow thct the injury was produced by the neg- 
lit^enoe of the defendant, but also that the plaintiff 'r, intestate was in 
the exercise of due care and caution for his own safety. (Dyer v. Teloott, 
16 111. 300; Oasey v. Giiioago Hallway Co., 269 id. 386, 390, 39l). JStoie^to 
tt*^^l!gt:9rQfaf>^iiZ^:>mi^ks>fi^^^g:t^^^ A railroad crossing is a 

dangerous place, and one who approaches it must use the core ^^^nd cauticm 
coruensurate with the known danger. Failure to use ordinary precaution 
in such cases is condemned as negligence. (Orubb v. Illinois Terminal 
Co., 366 111. 330, 338 and cases cited.) In this caBC the complaint 
alleges the crossing is unusually dangerous. Disregarding the conflict 


.,'.-•-1 -bX>i&«itiv. ■^^W£i^Ji. 

- .: . , . ja(M«»i» a" aiXgsn ajiruJi^wioo \k^a oa ofc 0^ tnv 

io eXqIo 

./illJftXsXq ȣW 

\?»d>iii 'io sonsiiiX 

-sJ^ .(. - 05 .III dl 

iv ?■;: >' s'xi/ansdifiioo 

-".cflXjfX.i -isi^XX^;' 

-' ^jGiX^iI»0^ .4 i>t|i* Gov< %Ov>u 


In the testimony as to whether the gates were up or down, and assuming 
they were up, as appellee olalras, the question remains whether he has 
met the burden of proving the neoesssry element th t his intestate was in 
the exercise of due care and caution for his own safety. 

The law as to the speed of trains is v.ell settled. The public inter- 
est requir 8, and the law permits, thf^t passenger trains may be operrted 
at such speeds as may be consistent with a due regard for the safety of 
persons who are, in the exercise of due care for their own safety, travel- 
ing on the hl^wcys over and across railroad tracks. (Provenzano v. Illi- 
nois Central Railroad Oo,, 357 111. 19^, 196; QruL-b v. Illinois ferraln- 
al Co., supra, 337; Ghloago and Nortlwestern Railroad Oo. v.. Dunlejy, 129 
id. 132; Partlow v. Illinois Central Railroad Co., 150 Id. 321.) These 
cases all embrace the element of due care on the part of the plaintiff, 
or hlG intestate, as a prerequisite to recovery. 

In the Orubb cs e, suprp, it was contended th^t where a flash or 
vigwag signal had been established, a person about to cross the railroad 
track had a right to rely on the fact thPt the signal is not indicating 
danger and to assume therefrom that no train is coming; that the travel- 
er has a right to be guided by the wnmlng usually employed and the fact 
that It was not flashing, and where he, relying on that fact, relaxes his 
usual oautlon, he cannot be held guilty of contributory negligence be- 
cause of such reliance. After reviewing and analyzing several oases 
from other Jurisdictions, the court said in the opinion (p. 337),' "No 
fixed or positive rule ;rpplio?ble to all oases can be announced. It 
must be remembered that railx%)ad8, of neoesBlty, operated at a high 
rate of speed in accordaiice with public derarjid; that they proceed over 
their ov/n right-of-way and that the mechanical devices installed to warn 
tne public of approaching trains may get out of order, '^e believe the 
sound rule to be, that although the fact that a signal system is not 


. ril^niPj 


-t?X ^p.. -r,%H!^ r«M.tn30 lion 

.aonl.&iff A^'VfnO aienliiJ . tn^ ;':, 

v>s^ r-* »rfj *iOft«j:(;fia« lis asaJiO 

-^r- oftflii*};!!'; 


^nfn^^ivsT i«;! 

''^o2Xq<p •itn •▼i;riacq to bexit 

a aiiAlitoood III fteaqt ^. . 

^o ?©3| >;«« •nin*!:J sAXdosoicjtTft ^o oiltfuq «d;r 

^i on{if> ftj 



operating is an indication to the traveler that it is s-f e to cross, 
nevertheless he Is not thereby released of the duty of using reason- 
able cpre for hi^ ovn safety. Where the surroundings at a p' rtloular 
crossing give to the traveler an unobstructed vie%^ of a dangerous 
highway crossing he is not Justified in failing to look, or, on look- 
ing, falling to see an approaching train, merely acting in rellc^ce 
upon an assumption that no train la appi-oaohlng. The law will not 
tolerate the absurdity of permitting one to testify that he looked and 
did not see: , when, had he properly exercised his sight, he would have 


That holding is applicable in the case at bar. Multiplying cita- 
tions of authority on this question wuld only needletssly add to the 
length of this opinion. Human agencies in it he operation of signals are 
no more nearly infallible th^n raeohanlcfll devices mentioned In the 
Orubb case. The sudden illness or sudden death of a watchman, or sn 
assault upon or wounding him, or an accident to him, might prevent the 
performance of his duty. Even if he is negligent in thr.t respect, we 
know of no authority which holda that a traveler is thereby relieved of 
his duty to use reasonable care for his own safety. Gases cited by ap- 
pellee where it appeared the traveler was in t he exercise of such care 
and caution are not applicable to this case, where it clearly appears 
by uncontradicted testimony that decedent's automobile approached and 
went onto the railroad crossing at r. speed of from forty to fifty miles 
per hour, when, in the day time, at a point 60.6 feet south of the 
track, he could see the railroad for a distance of 960 feet townrd the 
oncoming train, and at a point 48.5 feet fromthe track, he could see 
the tracks for 1600 feet. Manifestly an oncoming electric head light 
on e locomotive at night is visible and attracts attention farther away 
than cne can see railroad tracks in daylight. 


/ifiii^ tan al erf RasI-flctTs'ron 
-- ■ ^ • nvfo %iii io1 . [rl-. 

•^-vB^si Mil. '*»8i©!^aE« %X%&si.o>m ml n»c ^ nadw Ton filb 

-r.v ,^6.»«a*»- ■..:jejiiXs*jn! 81- :a';' • ynetitOlltQ 

t»I?vvR'<?.t n !f?,^# ehXoff jfoirir xitiodzuf^ on Ito woiSii 
-IT- .y^#t«^R •Xd*»A0 3jie'X 6£ji o? \^u£> aifl 

atiRtqc^ v;X'i.Pv«,: r dJdiSiJiiqqfe :?cn sib nojttTtjBSQ J^OB 

at d.Cid ^nloq saji4 it^.B ©fi? ad, .,awiw ^-xi/odi i^q 

«os fcXyco ejrt ^ji&Brt;^ ftCSIffKnl *ft«>*t €»8i^ ^aIoq b jffo^fron .xiiacttf gnXaooflo 

iyii^iX JbB(S£C oXlxjrosXft Sfilsnociio mr. v.X?ffls\iaj&K .^•»t 0081 TioI; sU9a'ii §49 

V-^6 le/liJiBl acX:raeif3'a B3oj\ti?v id^&Xv aX Origin ^ft evJttfojnoooX a no 

There Is no testimony thrt tends to shov that pl"lntlff 's 
Intestnte was merely a passenger In the automobile. The car be- 
longed to him, and Vihltted was driving. llie Inference Is that 
they were engaged In a Joint enterprise. Being so engaged the 
negligence of V/hltted Is imputable to appellant's Intestate. 
(Qrubb V. Illinois Terminal Co., supra.) Even If he was merely 
a passenger, he was not relieved of the duty to exercise due care 
and caution for his own safety, where, as here, the testimony 
shows he hsd ample opportunity to see the approaching train and 
warn tkie driver. (Plenta v. Ghiccgo Glty Railway Co., 284 111. 
246; Opp V. ?ryor, 294 id. 533.) 

In our opinion the evidence conclusively shows that appell- 
ant's Intestate was guilty of contributory negligence v.hich w£.s 
the proximate cause of his death. Because of this conclusion it is 
unnecessary to discuss other grounds for reversal urged by appellee. 
The Judgment of the circuit court is reversed. 

Judgment reversed. 





,ai. NO. 9820 

317 I»A, 

Abstract aqenda no. h 




DOVE, J. : 

Nicholas faatore, a child approxlrartely eight ye/^rs ?jid eight 
montha of a^^c, was struck by an automobile driven in a southerly 
direction by appellee along a public hi^wcsy in v/1 1 County, and 
died as a result thereof. The highwry is in a suburb of the City 
of Jollet, and is knovfli as North Broadway end also as U. S. Route 
66a. The ecciient occurred at a street intersection where Rose 
Avenue Joins the west aide of the highway. Appellant, as admlnia- 
trotor of te decedent's estate, brought *? suit in the circuit court 
i\of will County against appellee for damages on account of the death 

of his Intestrte by the alleged negligence of appellee. At the 


close of the testimony far f?ppellant the trial court directed a 

verdict for appellee, and the cause is here on ^pe'-l from a Judg- 
ment on the verdict. 

1\ « A ^ A ijt 




.';^dC .On 

. .. ^......i..,- 




:. l'Ii»^d^. 


r HasOTw' 

tnlfliX>A ,ariOT<2ASt AJOOIH 

"^ ; 

ss Tsryrw i ft:'; ; ". ■ ' i " . ' . < ' i fer . ' i ' i . • ■ . l ag ' s r . ' i T i m ' rs 

..i^ ..... *... ,^...:..^., - ww^ •w.^-^ J J to toi»ii 
ii8£) 10I ©elXsqqB Jan-Lsga xJnucO Iiiw to, 

-^ -V. -. ,:.._. .« , r r.,»rv.-r,^ *jo^ X^OIBiJC . . ,. lo 9801 ^.^ 

_ irr-T-t? -^iS.-t no Jne_. 

Appellee's aotlon in tnis court to dismiss the appeal, on 
account of sever;l material insufficiencies and omi cions in tie 
abstract, and for a failure to make any reference in tiie brief 
and argument to either the abstract or the record, was taken with 
the case. Ail the complained of defects in the abstract are supplied 
by the addition.'^l abstrrct filed by appellee, .vithout which the apped 
must have been dismissed or the Judgment affirmed pro forraa. The- ad- 
ditional sbstraot was therefore necessary, i'he brief and. rrguraent 
of appellee makes appropriate references to the pages of the abstract 
and of the fidditionsl abstract v;here the material lestiraony is found, 
relieving this court of the neoesaity of exploring the abstract or the 
record. The motion to dismiss :he np; eal is therefore denied. 

The complaint alleges that the plaintiff's intestate was lawfully 
crossing the nl^way in en easterly direction; that the habit and custom 
of persons, and particularly children, in crossing the highway at th t 
point, on the day stated, was well known, or by the exercise of due 
oare should have been known, to the defendant; tht the Intestate, at 
and before the time of the occurrence, v^as in the exercise of due oare 
and caution for his own safety; that the defendfy:it did one or more of 
the negligent acts, r:^nd as a direct nnd proximate result there- 
of his automobile came into violent collision with the intestate, by 
means whereof he sustained physical injuries which caused his death 
on the same day; (a) drove the automobile at a speed greater than was 
reasonable and proper having regard to tae trrffio and the use of the 
way and so as to endanger the life or limb or injure the property of 
any person, in violation of the eftutes, (111. Aev. Stat. 1941, chap. 
9&^, par. 146.); (b) negligently irove at a dangerous r te of speed 
approaching and crossing where Rose Avenue Joins the highway; (c) 
negligently drove with defective brakes and was unable to slacken speed 
due to their condition; (d) negllt^ently failed to hnve the rutomobile 


^iw tijcnr. 

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under control and was unable to slacken or stop the saae; (e) neg- 
ligently failed to keep a. prop- r lookout for persons who might be 
crossing!, the highway at that time end place; (f) failed and neglected 
to sound a horn or give other warning to the intestate of the approach 
of the automobile; (g) otherwise so negligently rasp.aged and operated 
the automobile that it ran into the intestate. The answer denies each 
of these allegations. 

The grounds assigned for reversal are that the court erred in 
directing a verdict of not guilty; thr^t tte v-rdict is against the 
veight of the evidence, and is against the law; that the judgment Is 
against the law, and that the court erred in denying appellant's motion 
for a new trial, his motion in arrest of Judgment, and in entering 
Judgment against him. 

Cross errors assigned by appellee are that the court erred in 
holding that Wicky Delrose, an eye v/itness, was incompetent; in admit- 
ting testimony as to careful and cautious habits of the intestate; 
and that appellant committed prejudicial error in continuing to ask 
leading and suggestive questions after repeated objections by appellee 
and after being requested by the trial Judge to desist therefrom. 

v/here there is a motion to direct a verdict for the dei'endent, 
the evidence is considered in its aspect most favorable to the plain- 
tiff, with all^inf erences reasonably deducible, to determine whether 
there is a total failure to prove an element essential to maintenance 
of the cauee of action alleged. (Beckett v. F. w. Woolworth Co. 376 
111. 470, 475.) The court does not on such motion, weigh the evidence, 
or consider itg prei>pnderejice. The question is whether there is any 
evidence which fairly tends to prove the allegations of the complaint. 
(Peters v. Peters, 376 111. 237, 241; McFarlane v. Chicago City Rail- 
way Co. 288 id. 476, 478.) 


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The evidence discloses that the accident occurred about nine 
o'clock in the morning on July 22, 1941. The sun was shining and the 
road was dry. Rose Avenue runs east and west, Joining the west side 
of North Broadway, which runs north and south at th?t point, end curves 
to the east a short distance north of the Intersection. There is no 
intersecting street on the east side of North Broadway at Rose Avenue, 
end the ground declines to the east where there is a path leading to 
some private vegetr-hle gardens. Glty busses stop. on each side of North 
Broadway at the Hose Avenue intersection. Photographs in evidence show 
a concrete sidewtclk on the v^est side of North Broadway extending north 
from Rose Avenue, but no sidewalk on the north side of Rose Avenue or 
the east aide of Nortn Broadway, and no marked cro8s~walk across North 
Broadway. Between Tiieodore Street, four blocks south of Rose Avenue 
and the E. J. & £. railroad trsjoks, north of Rose Avenue, a distance 
of abjut one hrlf mile, there rre about twenty homes, a store and a 
ST' loon. 

iihortly before the accident Jennie Ciancanelli, her daughter 
Concetta, Mary Capitano, Catherine GapitPJio and Settle Kambic were 
standing on the northwest corner tfthe intersection waiting for a bus. 
They stood in a huddle in an irregular curved line, four of thera facing 
weit. The decedent was seen, prior to the accident, coming 6.o\m Rose 
Avenue. Mary Gapltano testified he was standing betv/een her nnd North 
Broadway, but she did not knov; Just where. It does not appear that 
any of the other members of the group saw him at th-^t time, or that 
any of them, including Mary Gapltano saw him enter North Broadway. 
Various members of the group testified they heard the noise of the stop- 
ling of a machine, or the brakes of a car, or the sque-dlng of brnkes, 
or a noiae something like a bump. One of them testified she did not 
hear cjiy horn sounded, '.hen they turned aroand they saw the boy lying 


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on or Just north of a black patch on the pavement. Appellee parked 
his cnr nt the curb ne?r some mall boxes on the west side of North 
Bropdwoy nbout one hundred tv;enty feet south of the north side of 
Hose Avenue, and got out of the oor. Jennie Clsnoanelli picked the 
boy up, took him to the sidewalk, and appellee then took him to the 
hospitel in hie o-ir. Appellant olalras in his arguraent that the black 
I)atch on the pavement was In the first lane west of the center line, but 
iiis exiiibit 3, photograph, shows there are four travel lanes, ivith a 
parking lane on each side of the pavement next t the curb, pnd the 
black patch is in the west travel lane, next to the west parking lane, 
and is not in the trvel Isne next to the caater line of the pavement. 
The position of the black patch in the west travel lane is further 
borne out by the testimony of Jennie Oiancannelli, who testified that 
from where she stood on the sidewalk, she took four or five steps to 
pick up the boy. 

Mary Capitano testified on direct examination that they were not 
paying much attention to appellee's car, and that she just got a 
glimpse of it; thnt it was going in e southerly direction, stopping 
at the mall box, in a "curvy" direction around the boy to the mnil box. 
On cross-examin-^tion she testified that appellee steered the car around 
the boy against the curb to park it, and that if he had stopped when she 
first sew tiie car he would have been In the middle of the roadway. 
After the noon hour she testified on re-direct examlnrtion that she did 
not see the c^'.r go around the boy, first testifyint^ she did not discuss 
her testimony with either of appellant's counsel during tne noon hour, 
whe then admitted th t she had told one of the attorneys for appellant 
during the noon recess that c.he did not understand one of the questions 
of appellee's counsel and had answered it wrong. 


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inuring the examination of the witness Marie Delrose, wnoae 
home Is on the east side of North Broadway, directly across from 
the northv-est oomer of the intersection, she testified th?t her son 
Nicky, eight yej?j:*s old, the accident, V/hen appellant's counsel 
InterrogEted her -s to the careful and cautious habits of the decedent, 
appellee's counsel interposed an objection on the ground that there 
was sn eye witness. Thereupon Nicky was called by ?ppellee, ^lO had 
previously subpoenaed iiim, and he was examined on voir dire out of 
the presence of tie Jury to test his competency. His nickname is "Geno". 
He had not been subpoenaed by appellant. He testified to -lis age; that 
he was in the third grade st school, knew now to read and write; that 
they were taught arithjnetlo, spelling, no geography or history, and that 
he was taught at school and by hie folks about telling the truth. The 
following questions and r»nswers appear in his testimony: -i, "Do you 
know the difference between telling the truth nd not telling the truth?" 
A. "No." Q, "..hat do you do when you don't tell the truth? what do you 
tell, if you do not tell the truth?" Q,. 3y the court: "What happens 
to you if you tell a lie?" n, "You get prison." Q.. "toir She court: 
"I>o you know what happens if you swear to tell the truth? If you are 
asked to, you have got to tell the truth; \.'hat happens if you don't?" 
No answer. Q. "If you are asked to tell the truth smd then don't tell 
the truth, is that wrong or right?" A. "I don't Know." Q. ?y the 
court: "Is it v rong not to tell the truth? 'Tiet do you understand? 

If you don't understand, Just say so. Nicky, do you knov: what " 

A. "I don't understand." Q. "Is it wrong to tell a lie? Do you know 
what a lie is?" A. "Yes" Q. "Is it wrong to tell a lie?" At t-is 
point the court interrupted the examination with the statement: "You 
have pursued enough," and asked the witness if he had catechism, to 
which he replied thrt he had not hed it; tha.t he did not go to church. 


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but would go. The wltaees ::hen testified that he knew Nlokey Pastore, 
and did know what happened to him, "but I have forget all about it. I 
forget some of it." i^e tiien testified he saw the decedent in sn auto- 
raobile aocldent; that he v/as not sorred'Vith all these people 8trar*ding 
around^"; that he understood iJhat counsel \-/as saying when he naked him 
if he knew vjhat happened to Nicky last suraiaer; that Kicky was in an 
accident with a car; that the right fender of the car hit him; that he 
saw the car and saw it hit him, and was on the porch of his house at 
the time; th^t he was telling the truth, end If it weren't the truth, 
he would be telling a lie; and that IS would not be right to tell a 
lie. Q. "Whft is right, to tell the truth or else tell a lie?" A. 
"Tell the truth io right". He then testified the car threw or dragged 
the decedent. 'I, "Did you see Nicky before the oar hit him?" A, 
"I don't think - I forget." Pursuant to further questioning, hs testi- 
fied: "I did see him go aoro; s the street. He was running. I could 
see him from my house. He was running this way from the other side of 
the street toward my house that was near the corner of Rose Street." 
Q. "Are you a little bit frightened, Geno, with — " A. "Yes." "All 
these people standing around? " A, "No". The court then stated h© 
di - not think the witness was competent. Appellee tendered him as a 
witness, and appellant's objection to his competency was sustained. 
Thereafter, over appellee's objection, several witnesses testified to 
the deoeaent's habits of care and caution In croaslng streets. 

It appears that the witness Vvaa confused by the nature of the 
questions first asked him, which might confuse any child, and probab- 
ly some adults, (People v. Peck, 314 111. 237, 241.) v.'hen later 
questions were asked him In a way which he understood, it is clear 
that he knew and undrrstood the difference between telling the truth 
and telling a lie, and that it is right to tell the truth and wrong to 
tell a lie. 3o, too, rs to his memory of the accident, his testimony 


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shows that he was soraewh^it frightened and confused at being In court, 
and first felt he had forgotten pert of the details of the accident, 
but, as he was questioned further, he recalled the events that- iae saw. 
The spjne thlnfe might htippen to anybody. His Intelligence is apparant 
from iils teetlaony. 

rhe test of the competency of a v/itness is not one of age, or 
religious belief, but of Intelligence ajid understanding, and the moral 
obligation to speck the truth. (People v. Sohladweiler, 315 111. 553, 
555; Shannon v. -wajison, 208 id. 52, 54; Sokel v. People, 212 Id. 238, 
241.) In our opinion the teatlraony of the witness nteets these tests. 
Vhlle a court of review \%'ill not ordinarily disturb the finding of the 
trial court on the colapetenoy of such witness, unless there has been 
an obuse of the discretion with v.'hich the trial Judge is to some extent 
vested, or a manifest misunderstanding of some legal principle, (Ghnnnon - 
V. jwanson, supra), we thlnX that in this case it is clear that the 
v;ltness was competent. It was therefore error to exclude iiis testimony. 
I There being a competent eye witness to the accident, it was also 

•rror to admit testimony as to habits of crre and caution on the part 
of the decedent. (City of oaiera v. Webster, 192 111. 369, 372; Chicago 
and Alton xi. i^. Uo. v. i^earson, 184 id. 386, 392; »i9<3»*g^*^f*^<tMi^i'-i!9^ 
PiZ^^^f^^^<:^!aag fA\jt^ei'y^^ . i 0- rin { tea33&o j tpjig^ > er . < * .■* j T^it f 3. «)(?-<Le »' rg 8i ^ Nordmon 
V. Carlson, 291 ttl^'438; Micca v. /a ton By. uo., 281 id. 216.) 

The follov.'ing testimony of Ooncetta Glancanelll indicates that she, 
too, may have seen the accident: ^,. "You saw the oar that hit the boy?" 
A. "Yes." Ci. "Was it traveling or coming to a stop?" A. "Goming to a 
stop and hit him. After a little he hit the boy." 

Decedent's brother, Tneodore Pastore, testified that he saw appellee's 
osr :-t the hospital after the accident and saw blood stains "near the 
radietor there; left aide, driver's side, fender." A pellant argues 
that this demonstrates that the decedent was going cast across the high- 
way and had almost passed the pathway of appellee's car, and that 


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appellee oould or should iaave seen him as he wos crosolng in front 
of the car and in its pathway. This testimony does not have the 
probative foroe olairaed by appellant. To give it suoh force, we 
would have to first presume that the boy was going east aoross tba 
highway, of which there is no eviderice. Upon that presumption we 
should next have to presume that he had almost passed aorosa the 
path of appellee's orr, and that r>ppellee could or should have seen 
him, thus basing presumption upon presumption. A presumption cpjinot 
be based upon a presumption or en Independent inference upon another 
inference. (Globe Accident Insur^mce Co. v. Q-erisch, 163 111, 625, 
629; Ohio Building Vault Co. v. Industrial Boord 277 id. 96, 110.) As 
was said In United States v. Ross, 92 U. S. 281; "No inference of 
fact or law is reliably drawn fix>m premises v;hlch are uncertain." 
VHienever circumstantial evidence is relied upon to prove a fact, the 
circumstances must be proved, and not themselves presumed. (Globe 
Accident Insurance Go. v. Gerisch, supra.) Further circumstances in this 
connection are to be noticed. There is no testimony that the car was 
traveling fast, ^he te timony of Concetta Ciajicanelll and Mary Gapitano 
tends to show the opposite. Under those circumstances, even if it be 
assumed, as claimed by appellant, that the boy was moving east aorosa 
the highwoy, it 1^ Just as logiosl tojpresume that he oould have been 
struck by the front end of the right fender of the car, and because of 
his motion in going east, would pitch forwaiHi end. contact the left 
fender, as it is to presume that he was first struck by the left fender. 

The evidence shows thot the black patch on the pavement Is only 
obout six feet south of where a cross walk, if any had been Indicated 
on the pavement, would cross North Broadway. If the decedent was cross- 
ing the highway =^t that place, as olr-lmed by appellant, he was not 
thro'rfn or dratjged more than six or eight feet when struck, which strength- 
ens the Inference from the testimony of the two witnesses last n.araed. 


. . ■. . atf 1 ''tii MttB "*ii6 «n. 

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that appellee was not driving at an unreasonable or unsafe speed. 
There is no testimony that there were any skid mrrks on the pave- 
ment, or that t,iie sound of the brakes continued ' f ter the boy v^as 
struck, ■'•he fact thc?t no horn was sounded is Just as consistent 
with the boy having run out in front of the cr-.r as it Is vith ap- 
pellant's tneory th.'t appellee was not keeping a proper look out. 
There is no testimony thet persons frequently crossed the alejhway 
at that point, or that appellee's oar had defective brakes, or as 
to the speed of the car, or thrX it was out of nls control, i'he 
fact that a witness, who wrs digging stone ebout forty feet east of 
the highway, he rd the sound of the br-Jces, does not tend to show 
excessive speed. It is common knovjledge th'-t brakes v.'hich squeal 
will ordinorily be he-rd that far or fnrther; -nd there is no show- 
ing th^t squealing 're defective in point of stopping a opj». 

The testimony as to the decedent's habits of care and caution 
being incompetent, is obviously not to be considered in determining 
whether the court erred in directing n verdict for appellee. Summar- 
izing all the competent testimony in its aspect most favor'^ble to 
appellant, there is no testimony which fairly tends to show that ap- 
pellee was guilty of any of the negligence charged In the congjlaint, 
or thct the decedent was in the exercise of due c re and caution for 
nis o.r.n safety. On the other hand, if the testimony of Nicky Delrpse 
had been admitted, as it should have been, it would have shown that 
tne decedent was not in the exercise of cuch due care ;^nd caution. 

tiegligence is never presumed. It was necessary, in order to 
recover, for appellant to prove both that his intestate was in the 
exercise of due care and caution for his ovn safety, f?nd that iiis death 
was caused by the negligence of appellee. (Casey v. Chicago Fiailways 
Co., 269 111. 386,390-/) The doctrine of res Ipca loquitur, invoked 


•iseaqa p^an. 


lo ifs/;'' i,3%,ol Ji/cc' saoJe ^uUjei&ii> a>^w oiiw «8«ifta;Xw ^^ ^retitf ^& 

Xitdupa ^i'^liMv: m^a^-ia i d3 a^£)fiXwon^ nomaoo zl il .Ld«qe svlssosxs 
-..'c .9ii;r xjoa? inieflJ" ?£ii;r bta^ 9cf ^iXiteniMo XXI 

.e»IXeqqss "xol J©Jtl)it»v n ^nXiJoaT 'lis iJiuoo orliJ leriJadw 

■'.jB. :rjadJ wo ;.neJ \XiX«1; xioiiiw x«o®JtJ89;r on si ei^riJ ,JapXieqQB 

not Ofij^unpjbw^ 'w|) .Jo,.%a40T[s%xt? «^? Afej.«a 10 

^*<|0 JfcJi.r ■ 

grief nl 

,X>9:rJXa£>.a ocMf &a«i 

xi? dioii »v<nq • -ou-st 

.iXiiJ«i>i' ,aiii (voec,685 .XXI QdS ».oii 


by appellant, is, that whenever a tlrilng which produced an Injury Is 
shown to have been under the control nnd. rac?.na-£ement of the defendant 
and the occurrence is such as in the ordinary course of events does 
not happen if due care has been exercised, the fact of injury itself 
will be deemed to afford prima facie evidence to support a recovery 
in the absence of ^xi-j explanctlon by the defend;-Jit tending to show 
that the injury was not due to Ms want of cara. (Boll en bach v. 
Bloomenthal, 341 111. 539, 542.) 3uch an explanation would obvious- 
ly have been made in this oaae throu<^ tiie testimony of Nicky Delrose, 
if he had been permitted to testify, -uch testimony would have been 
a complete answer to the doctrine, ?nd appellee is not to be penalized 
by applying the doctrine through the error in excluding the './Itneas. 
To do 80 would violate every canon of law snd deprive appellee of a 
fair trial. Cases cited by appellee, v;here such p factor v;bs not 
present, have no application here, and neither hrs the doctrine. 

v.'hst is fibo/e said nnewers the contention as to appellee^s duty to 
yield the right of way to pedestrians ct cross walks. (111. R-ev, Stat. 
1941, chap. 95-g, p-r. 171 (a). 

Our conclusion that pppellant has failed to msJce out a case is 
supported by Ganey v. Chicago Railways Co., supra* Roberts v. Olty of 
Hockford, 296 111. Ap . 469; Zlnk v. Breese Grain Co., 260 id. 281. 

There was no error in directing a verdict for appellee in this 
case, and the judgment of the trial court is affirmed. 

Judgment affirmed. 


4V £lG'5»tft%XIc afiwBlri o:- sui^ J'on saw v»*'l'tt-i ^^ ^£*i^ 

-ewoiircfo fcIiK>vr ncXtfensXcptr «» riowi^ (^Si-S ,ece .XXX X^5 » XBri^JataDoXe 

^jaOTX-'iG MJfoXW lo ^ftCEdtf? :^cnAi !^bA&\ na'sd 9v^ ^^X 

j.>95XXr:iit-. . ; •I.i:<»(|^'-fea«a »era*r*ooi> ad? ojf aewBne c^uXqiaoo b 

2r«KfXaq<je 9vl'tcf«i> .5/^ vfaX lo nortJ-o -^lav© eiJeXolv Muov os Qb oSC 
5on 8HW rrou^OBl s rfiDi.'e ««re>riw ^^©Xi^c^qft -^c? £>!>^i9 aeaaO .XPiitf ilfi^ 

.^ ^?oB a'^»©lX%qqd' ■««?■• cTft fto Id's* no© ^'j «i»i»wafr. Jiifta »v««i« a;; 
.tfjsJo - . .11) .::?flv' 5 son© tfi «mi*s?raefcftq o^ "^C-sw lo d-ri^jii ootf Maix 

,UJ X?I .nflQ ,9ee. ,qsric ^Xi-CI 
r.i saso s iiso »icBt o;J' SaX.t'sl sfiri JosXXeqqa ^«riSf nolei/Xonoo luC 

aliscf&^x ;!tqu3 ,.oO 3'^,wXX9H 08«oirf2 .v xeHRi/ ijcf Jbe^ioqqiie 
.XS2 .6X 08S , .oO itlft'tO sa*«ne ,▼ 2£alS ;edit , ,111362 ,l)ioWoofl 

:. £.lf .■ asXXoqqia •»>1 l»'Oil««r is :^i3'o9T[XJ: ai ioTX» cfl »aw ^'Xtdt 


GEN. NO. 9844 






DOVa, J . : 

Upon tt» compl-lnt of appellee the circuit court of i'eorla bounty 
on April 2, 1942 Issued a temporary Injunction restraining appellant 
from maintaining, using, or permitting to be used the premises described 
as 215 Walnut Street, In the City of Peoria, for the purposes of le\vd- 
ness, assignation or prostitution. This writ was duly served on «p- 
pellont by the eh. riff of Peoria county on April 4, 1942. On June 29, 
1942 upon the petition of the state's ?^ttomey a rule was entered by the 
circuit court agninat appelL-mt Nona Crowe and one Helen Garter to show 
cause why they should not be punished for contempt of court for neglect- 
ing mi refusing to comply with tte order of April 2, 1942. No service 
was had upon Helen Gnrter but appellant was served and In her answer she 
admitted the entry of the order on April 2, 1942, the issu'^nce and service 

IG G«O0i 

1 ■ .v.n....t, 

. ^A0 /iHO« 


iicXJoiS«J,HX ^i.p'tPqanf^'B.fiaflBBl ai^SX »S XiiqA no 
■f 3S|<r^io«q "ao ,B«'taij ^^nlnlRZdl^a meal 

'■'^ !' 'I? w iifjiah firm ewoii-' a«ioH ^itt^XXeqqa iiTaflif^a iiuoo iluo^lo 

wia 'XflWCi: ,d\'-'-di. ^Juw Ja«ix©^q.e. iud toiJrjaO asXsH ncqu Aari saw 

of ^preliminary injunotlon, denied that she wilfully and perslstsnt- 
iy refused to comply with its provisions and denied that since the 
entry of that order and the losufunce of the temporary writ she has 
maintained, used or permitted to be used the premises described in 
the writ for the purposes of lewdness, assignation, or prostitution. 
A hearing was had in open court resulting in a finding that appell- 
ant has wilfully permitted said premises to be used for the purposes 
aforespid end finding her guilty of contempt nnd sentencing her to 
the county J --^11 of Peorir county for sixty days. To reverse that order 
the record is brought to this court for review, 

Ray Strcibioh, Robert Bejrles and Sam Belfer testified on behalf 
of appellee thrt they/Were all members of the Peorio Junior Chamber of 
Oommeroe and members of a committee of that acsociation which v;as in- 
vestigating prostitution in i'eoria. That on the evening of June 15, 
1942 between ten thirty -nd eleven o'clock they were investigating houses 
of prostitution in the neighborhood of 215 Walnut street and were at- 
tracted to the brick residence there located and occupied by appellant, 
by some girls rcpping on the window as they passed along the street. 
They went up the steps leading to the front door. They did not ring the 
bell but a colored maid opened the door and admitted th«n into the recep- 
tion room. A white girl called "Helen" was called by the maid. Helen is 
described as a brunette, about twenty seven years of age, v?eighlng about 
one hundred forty pounds end dressed in a beautiful velvet gown, -hen 
Helen came In she asked them to put a dime in the music box. Appellant 
entered the room to get her coat which was hanging in ? closet and was 
referred to by Helen as "Mom Crowe", "the madam", and as "the lady who 
run the hoiise". There was some conversation between Helen ?nd r^ppellant 

and after tae music box was started Helen in the presence of appell-nt 
wanted to know if the witnesy di'in't wrnt to go up stairs end Invited 
tnera to do so. iihe deeozlbed herself as "good and tight" and quoted 


;,'Xf3*Soqif.--- awriuirta.t d...-; .;..r -.:.-"(.. :i ::V 1^ Xi4ci9 

aaoqiuq ^'a/ffl^^Tq M«a jbotfv^ Ion oqj^ lull Iw a«xl Joa 

•^i&T:o ifjsici? 8n»V9'5 , :i?>f* v3x.;. ... ■;:• ; "to ll^l yiauoo 9Ci3 

^ ';:." ,:..•■, '.■■■0 bfifil^eBi itt'lltiB, MB - y .loicfieT/ 

daeai j;>ns eoiacaic 
( ,C;X sntfL'lc 8«-itt0V£i and" A- . flo4i;i4;,;j»onq jjajiJcsgijasv 

- t-^ eisw ii/n ifttnih iualA'fl SIS 1^ xjooxl'SocfiSaXon SiU ni aoidutfl^Aoaq^' 

.^ SAli Jen bUb ^©jl"^ .iccA JiKJilt 9fi« 03" a«JJE>a«I «q»aa »ri* qu ;^new ^9£i. 

nsXsS'' ImXIao IiX;i iJXctw -, .moo"*- ncW 

"zidi/f'dcf c fli £»eas^£ Jbaa Bhaaooi "if^ioX b9tbc^ti ano 

JflsXIsc i:Bjuin m^til *^tb & tuq oi l&«riJ b^t^e, aria ni ccmo a%l$lR 

'; V tl gnl-cj. 1 ;r»s ai fiocn stii JbertsJ^ns 

n«itH n»ew;rad"iioi3'aft«t6TftOO ecioa a«w 9"isrff -"bbcocI ortf mm 

Id ooneaeiq :9fl Ae^infa s v xod oXbuc acJ ttsJTtB Ijob 

Jlvnl bti& uitPiHB iu OS D» Heto'it i^ai>tb\B»a^tv »ri(f W worul oj JE>9JtluMf 


prloee for sexu-1 Intercourse rsngln^j from 12.00 for tv/enty lalnutes to 
;»5.00 for eji hour, "'hen the v/ltneeses left they told her they would 
prob;^bly be back again and she replied tnat they would be open until 
three or four o'clock in the morning and Intlted t -,ea to return. One 
of the witnesses stated that he told Helen that they had been -^ll over 
town trying to find e. couple of joints and wondered what v.'as going on 
as they vere un'ble to find any other pl".ce open. Helen stated that 
there was a drive going on and th.-t all the places .were closed. Refer- 
ence was raade by Helen to the fact that tiiere v/ere other girls upstairs 
and <0.1 they had to sell v;a8 women and rauslo and a derogatory reference 
was made to tlie assistant state's attorney regarding the drive that he 
was putting on to close houses of this character and that they had to 
operate not as openly as the,.' did before. 

Appellant testified that her home was at 215 '.Jalnut Street In 
Peoria and had been for one year; that prior to February 1, 1942 she 
had operated a nous e of prostitution there but since that date it had 
not oeen used for anything other than her private home; that Helen Garter 
was the girl the witnesses for the People were talking to in her home on 
the evenini: of June 15th; thrt she had no maid there at th-^t time but 
suother girl, June, '^ho fell while roller skating was there but she was 
ill and in bed end had been for a lonv^ time. That she told the witnesses 
for appellee th t there was nothing doing aiid thot the place was closed; 
thBt Helen had come in not more than twenty minutes before the men came 
th"t evening end had gone upstairs to see June when the door bell rang 
and as appellant was unable to answer the bell Helen did so; that ap- 
pellant afterwards came down stairs, remained not more th'in five minutes 
and then left going to a drug store end when she returned the men were 
gone; that the music box was not in operation th t ni^t and had not been 
since February. 


.Ainjaqf; alii3 •i«jrt;ro -"x»w ©iwlif J'srfS ol'^^ '^d sfcjsar bIbv eons 

■- :• ii^ri ^»iiJ J<*ri[^ JbfiB •MsSo/yi^rio afe;:;. . , , no s'JJtffJwq c.;c\,; 

.s-io'^-^-. _ . vfn^qfs oa Jon »;fBieqo 

bAA JX *>3r^l> jariJ sania ;^jud »'seil;f aolSuilS^cn jinifqt M. 

•s^i^taO r»I»iai $nri9 |««od «^£Vl«»q i»il flRri;* Tflff^c ^liit^t*^* nol; ibeat/ a09d JCr 

*ti<;f eeW ;f££f5 Jo. «»j«»r{? iinflt en £>«/:• f» jrt^Si «ftwl» ^c jjnln»vs artJ 

J9e3»a?i^? ^ri;f fiji-; dT , saj? •sfl': 4 '^^ bOb tsc' nl J»rt8 lit 

■lis© nf»Bi 9d3 stolfto" aeJi-i'ilw x^**»'*'* n«rfiJ swe ^ii fli sfuos jbcri rt«l9H JbiIj 

.^rtni/ncfe't sonia 


Harold Haney testified thrt he was a serviceman for the Peoria 
Phonograph people, w?-8 familiar with the premises whei'e appellant 
lives and that in the first p-rt of February the Wurlitzer coin 
machine there located was broken and not cspsble of being operated 
and that he did not fix it and had never been bfok to repair it since, 

Oounael for appellant argue thpt the one isolated visit to the 
home of appellant by the witnesses for the i'eople on the evening of 
June 15, 1942 is not sufficient to support the finding of the trial. 
o;)urt that she wns operating a house of prostitution, that much of 
the conversation which the severol witnesses detailed was outside of 
the presence of api ellant ojid therefore she, appellant, should not be 
bound thereby. The evidence is th t the witnecees were there about 
thirty minutes ?nd that they remrlned tojsether. According to Mr. 
3treibich appellant was present about twenty minutes or two thirds 
of the time they were there. Mr. Bayles testified that they had been 
there fifteen or twenty minutes when appellant came in and Mr. Selfer 
thought she left about five minutes before they did. In answer to 
the question of the State's attorney .hether appellant was present r^nd 
he^rd Helen Invite iir. itrelbich to go upstairs, his -inswer was that 
sne did. ^^. Bayles testified that Helen said to him In appellant's 
presence that all they had there was women and music and wanted him to 
go upstairs with her and see her tight, Scotch-Irish pussy. Mr. Belfer 
testified that Helen told him that .another girl by the name of June was 
upstairs and appellant said to him: «One of my girls is upstairs, she 
had en ulcer on the tubes" and ell the witnesses state thrt in the 
presence of appellant, Helen informed them of tne scale of priced. 


;jsio«^/ «*i«iid' fe^ftW aetJ^j^isail . ...- -- ....._...■; .xoaisxld" iftootf 

aiiiirivt ow? .. . ^.../„, ,,:neu'^"';fyt>d]8 ';rcs«»'6i»*t^ , .. . — . /i flcidi*-:.-^ 

' V. ■»....:?.-.., . -.«^. ....u; w... . „ .w ..»If»fi J^firi? bi^^'i^ V.V w .: ■ . ,;^,. ^..a 

8a#'©ai/t lo ©rtp" "^ tig 'idrijbnQ 3'flriJf nlri i>Ioi n«'jtift ;rijil;? iiojtliJas? 

w-.: li. .;,: :.„,-; ii J ...... _„ ajKfy J »rtrfn:o ibqIu ti2 .. .. 

The rappln«^ on the window which attracted the attention of 
the witnesses, Uie appearance of the colored maid, the opening 
of Uie door by her before any bell was rung, the presence of the 
music box, the appearance of Helen GrTter, a prostitute who, prior 
to Febzniury 1, had been so employed by appellant, the presence of 
June upstairs, of wrioia appellant spoke <ts "one of her girls", the 
reference to appellant and the tsT'-as applied to her; ''11 these facts 
ond others which tiie evidence tended to prove when considered In the 
lij^ht of all the oircuraatanoes s.iovn in this recor'd, abundantly sus- 
tain the findings of the chancellor. According to the usual laws of 
reason and ooiomon experience the only conclusion that ooxi be dravvn 
from the evidence in tiiia record is th?.t the provisions of the tempor~ 
ary injunction were being wilfully violated by appellant. 

Appellant's testimony that she told taie x^ltneases for the i^eople 
that her place was closed and that there was nothing doing is expi^us- 
ly denied by iir. Bayleaand Mr. c^treibich v;ho testified that he was smart 
enough to see th t it was open. 

The trial court believed the testlraon^^ of appellee's witnesses. 
vve have read .^JLl the evidence as abstracted. It amply sustains the 
finding and Judgment of the circuit court and that judgment will be 

Judgment affirmed. 


•.'-I'^oe'i ^rf.** TC^ t^©.r.r3n7i-' er'-t I)X3? rrfa tfaritf xnomX^Tefj?' B';taaXX»qqA 

..fiieqo aav .. . - ■. _ ■ ;ts 


31. 539^ 


Gen. No. 9818. Asexidaj^l'|. 25 


^\^ OCTOBSR,^RI.L A.D. 1942. 

UlTION CABINET CpEtPArlY, a Corporation., , ) 

/ (Plaintiff) Appellee, ')-,, 

^""^ ) "Appeal from 

-^•"^ vs. ) dlrcuit Court, 

^^--- ) Lake County. 


ration, ) 

(Defendant) Appellant. ) 

WOLFE, — J. 

The Union Cabinet Company, a corporation, entered 
Into a contract v,'ith the Interstate Hotels Company, a corporation, 
to furnish certain equipment, and material for improvements to 
one of its hotels. The plaintiff filed a complaint in the Cir- 
cuit Court of Lake County, alleging there was a balance due on 
the contract of v719.63. In this, was an item for 'extras,* 
for .^,350. 50. The defendant filed its answer and adiiitted the 
Eiaklng of the original contract, but denied that there were 
any 'extras,' ordered by the defendant, and denied that it was 
indebted to the plaintiff in the sura of 5719,63. The defendant's 

\ 700 3Ta 





3 OiCil 

lo &ac 

linos dj::^ 




answer contained an Itemized statement in -which damages were 
claliaed because of the failure to f-ornish certain articles 
in the contract. They also filed a counterclaim alleging that 
the plaintiff v/as indebted to the defendant in the sum of ^22. 51, 
The case was tried before the Court by a jury, and a verdict v/as 
rendered in plaintiff's favor in the ama of $544,58. Judgment 
v;as rendered on this verdict, and an appeal has been perfected 
to this Court, 

It is insisted by the appellant, that the verdict 
of the jury is against the manifest v/eight of the evidence, and 
is a compromise verdict. The plaintiff gave its version of the 
contract and the 'extras' furnished, and the defendant gave 
its version. It was a province of the jury to weigh the testi- 
mony and decide the questions of fact presented to them. Evi- 
dently the jury found that pay for some of the 'extras,' as 
claimed by the plaintiff, should not be allov/ed, and deducting 
these amounts from the original claim of the plaintiff, the 
verdict rendered by the jury of $544,38 ¥/as proper. 

It is claimed by the appellant that the Court 
committed reversible ei^cor by not giving their refused instruction, 
which states the law relative to the burden of proof applicable to 
the facts in this case. There were only two instructions given by 
the Court, and each of them was relative to the burden of proof, 
and properly set forth the law relative to the saiae. There is no 
error in the Coxort's refusing to give the defendant's instruction, 
V.e find no reversible error in the case. The judgment of the trial 
court is hereby affirmed. 



ST?',? ^'::-:i3.>iiBb :i.'>Ldw !,1 t;iu5:yJi!,i-8 LonLiUi ] ': 

!l K i r. o . ■) 'Te V? R rr p. 

.I8.2Sc^ lo atsse ex2': -V'oloL cif* oi b&idebnl ^j»w -lllialalq 0d:i 

aijw cfoljbiev & tna ^■'jti/t ' o-ic'.^^cf belli eaw eeso exiT 

i^ndE^byL MS.*^^?i^ to tmc Jilirttolq ml be'iefxtsi 

ioxijiev exf:? j'nr':: ar,^-:IX©Q.. 


o rcovig anolcfomctonl ov* -^Ino »«ew ©ioj 

or 3 J- r'ior'T .amas ... ,tf;;^I orf"' 

- c JnjB£>n©".u ^'V-ts o^ . 

Islnd" ©ni lo inemghirj, oriT .odjso srL ni loa'ie QLdleiev9i oti ball &H 


3 0^iijB 


<,4!-Vv--.«s^ ,f^^'^ 

Gen. No. 9848 

^Agenda IIo. 31. 


^''■^^ OCTOBER 'J^tRU, A.D. 



Plaint iff -Appellant,' 




'NJICUIT court OF 

WOLFE, — J. 

Donald riper, by Eiagene Piper, his next friend, 
started a suit against Peter J. Speroni for personal Injuries 
he received when a Ford car in which he v;as riding, ran into 
the rear of the defendant's truck which was standing on the 
improved paved highvi/ay in Bureau County, Illinois. Since the 
beginning of the suit, Donald Piper has beco:ne of age and 
Peter J. Speroni has died. Esther L. Speroni, the Executrix 

8^80- .o>I .n©D 



•;; 1.J J t.L\j :',j.jLti_ )ji-i;j J 

jiSj-^^v a.':< .1 

jju j^'tj V 1^ j.ui.;-i. 



of Ills will, has been joined as defendant to the sviit. 

The case was tried on the second amended com- 
plaint containing four counts charging (l) That servants of 
defendant negligently and carelessly perriaitted the said truck 
to stop and stand on the highway thirty minutes and upi^fards 
without any lignts or flares, or other signalling device, 
ahead or to the rear of the said truck. (2) That defendant 
violated Section 135 of Chapter 95-i, Illinois Bar Statutes, 
1939, prohibiting persons frora stopping, parking, or leave 
standing any vehicle u]pon the paved or Improved traveled 
part of the highway when it is practical to stop, park or 
so leave such vehicle off of such part of such highway, etc. 
(3) That defendant violated Section 200 of the Uniform Act 
Regulating Traffic on Highways (Chapter 95^, Section 200, of 
the Illinois Revised Statutes of 1939, State Bar Edition) 
providing that: 

"Vftien upon any highway in this State, during the 
period from sunset to sunrise, every motorcycle shall carry 
one lighted Isam and every motor vehicle two lighted lamps 
showing white lig-its, or lights of a yellow or amber tint, 
visible at least five hundred (500) feet in the direction 
tov.'ard v/hich each motorcycle or motor vehicle is proceed- 
ing, and each motor vehicle, trailer, or lamp which shall 
be so situated as to throv/ a red light visible for at least 

-moo Li>Di3,&i^A ikiooes an J no bQlii Haw 9Bao oxJT 

risvi#a ^Br" aiigiBifo einuoo iiso'i ^.ninlBinoo cfnxjslq 

ebtBvqv bns ssiunltn x^^^^^ x^wriS'i'^ •■ 

^ao^ ' jooil I>©isXolv 

lie 3I il r^Siiw tAwxlaii v.sq 

cfo^ rmollnt :.) OOS aoxo'"i>do I)£.i£iXolv iiiawnelo, 

.-wBiiJ 3nli)ivo»iq 

Y113 IlBrfs eloYOioJom ^'^evs ,e8l*rrt0E oct ctOBntre nroil f)olioq 

BqxnBl f)S*riBlI owi elolrfev loiom y'^Q^s Brta qHfll bsidgtl sfio 

■3cfi?ie 10 wolleij ja lo c '^ifl^ll ©ctljrfir gnlworia 

xioiooeiiJE) arfi hi iefel (OOS) ijaiiiuj;i ©v±l iasel ciB elcJ-talv 

-fjesooiq 8.t sXo/.ri©v locj- CoYOioctom rfOB© rfolriw l>rtJBWOrf 

rioidw qatsl .-^lotriev tod'om rfofis Jbna ^'sm 

ie&Qi JB TOl elcflBxv J:l^ll Loi li wo'xrfct oct sa becfax/ila ob ©cf 

five hundred (500) feet in the reverse direction," (4) That 
defendant did then and there so carelessly, recklessly and 
negligently drive, manage and control the said truck that 
Donald Piper, v/aile exercising ordinary care, ran into the 
said truck and v/as seriously injured. piper sustained per- 
nanent injuries to his pelvis and right leg from vvhich he 
will be disabled for life. 

Esther L. Speronl filed her answer to the complaint 
In which she denied that Peter J. Speroni, either by himself, 
or his servants or agents, was in any way or respect, negligent 
or careless, as alleged in plaintiff's complaint. She denies 
that the truck, in question, stood or was permitted to stand 
upon the highway for a long space of time without any lights, 
or v/ithout flares or signal devices being placed upon the 
highv/ay, as alleged therein. She denies that the plaintiff 
was in the exercise of ordinary care for his ovi/n safety, but 
charges that he was wilfully and wantonly driving at a speed 
in excess of fifty miles per hour. The answer adraits that 
the accident liappened, but she denies any and all responsibility 
for plaintiff's damages. 

The case was tried before a jury who found the 
issues in favor of the defendant. The plaintiff entered a 
motion for a new trial, which was overriiled. Judgment was 
entered in favor of the defendant, and the costs of the suit 

crn9 5X-i 

il l^rO^:S: 

"iVtlJ^ XJ-HO 

__ 9axD'xtiA.j oAi ill 3-3 f/ 
Ic aaec-:.; .ai 

.3 .5f 

>p.lin:'::?vc e/.^ 


.0 ectac; 

i Ijsieine 


assessed against the plaintiff. It is from this judgment 
that the plaintiff has perlscted an appeal to this Cotirt. 

The appellant insists that the Court erred in 
giving defendant's instructions nu:Tibers 8, 18, 19, 20, 21, 
23, 24, 25, 26, 27, 30, 31 and 32, and each and all of them. 

The evidence in this case discloses that on the 
evening of April 28, 1940, hetv^-een 7:30 and 8:00 p.m. the 
defendant Speroni's agents and servants v^ere driving a large 
tru-Ck on the highway west of the City of Van Orin in Bureau 
County, Illinois; that this truck consisted of what is 
coamonly called a tractor and trailer, and was heavily loaded 
with carnival eqiiipment; that the tr^ack had stopped at the 
Village of Van Orin; that as they proceeded eastward, the 
driver noticed that the engine was not V;forking properly, 
and that the lights v/ent out and the engine stopped running, 
and the truck was stopped on the paved part of the highway. 
Donald Piper and several other boys in Donald's Ford car had 
planned to go to Mendota, and were driving along the same 
road and crashed into the rear of the defendant's truck. The 
evidence shows that the truck had stood upon the highway for 
several ninutes at least, without any effort on the part of 
the defendant, Speroni's servants to put out flares, or any 
other warning lights to warn people, usin^g the same road, of 

jIS .'" "' ' "■ siecfrnjuxs enolctpxriianl e'ina-fcnelsi) gnlvls 
.w6i:fo ic :. '...z ov^B, ■■io.oel "" ' "^ "" "" ' " "" ^■- --. 

©rfj nc ctaiij EeaoIosUb sa.3 '.icj --..c ennsij^'/e srix 

erid , . 00:3 bn-s '' '^ r-aewj'ed " '' — - ^ ■ ;^ jtq ^ninev© 

ujaeiijS ni nxiO nsV lo T.i -■'•"" " ' -^Bwrfglxl ©rf^ no ^Totnci 

'. jsisnpo .^ ■ ; "' ^-riax/oO 

srf^ d-fi b&qqoiz bjexl ;.o„^\.j ©rfJ j ineaiqli'p© iBVtcr^ao diitt 

6rfi ^biBTd-sjee bebeeooiq -^©nj ss jiirid' jnl'xO hbV lo egialllV 

^Xl'^eqoiq sni3![iow ion aaw ©nlgctd 6rIo ;tjBil:t £>eol:ton tevtnb 

^Snxrrjccxn I>8qqoi8 enlgn© ©rfd- ba& iud cJnew ecfrisll ©rfj iarfj bus 

•XB'^^irf ©rfj lo JiBq bevAq erf J np" beqqo Je aaw ilojjij erfj bna 

bfirf ISO pio'i a'MsnoG nJt eifocr i&dio la'iQveB. ba& ^6qI•l blanoQ 

ptstBB Bddr gnoXs snlvlii) 9iew bxiB ^aJobneM oj o^ oJ bertaaXq 

6rfT ..I'oxnJ fe' JnsbneloJb srij lo lisei srfj ojnl Jjsrfasio bna bsoi 

lol jn-vr: : noqsj Lpcie ' •' e»rfd JBX'i e«OxIa aonsblv© 

:;:"■- -^nB virOiTjjxw ^JasQl is Qsiunhz Ijsrtevse 

^^TLi •"■c ^ay'iBJ-i t/jc - ■ aJnBVise e'lnoieqg ^inAbneloi) erii 

lo ^bs.o's. sxTTiss 9rfj jHi r. :? ^siqceq niB'sr oS airfgil gr.:iiisw laxi'jo 

the danger that lay ahead of them; that there was a search 
made for the flares, but they could not be found until after 
the accident occurred. It developed later that there were 
flares on the tr-ack, but they were not in their proper place, 
so they could not be used in the emergency which arose when 
the truck stopped on the paved part of the highv/ay. These 
facts are clearly established by the testimony of the 
witnesses in the case. 

It is argued strenuously by the appellee that 
the Court erred in not directing a verdict for the defendant. 
Other evidence developed in this case, not quoted here. This 
case Y.-as certainly one to be submitted to a Jury under proper 

Defendant's instruction ITo. 8 is a peremptory 
one, and has been criticized both by Supreme and Appellate 
Courts, Molloy vs. Chicago Rapid Transit Company, 335 111. 164. 

Defendant's instruction No. 19 also directs a 
verdict, and is erroneous. It v;holly omits the negligence, if 
any, of the defendant's agents in stopping upon the highway in 
the first place, or not trying to park the truck on the shoulder, 
v/hich the evidence shoves was fairly solid, and about fourteen 
feet wide at the place where the collision occurred. It also 
ignores the fact that there was a gravel side-road close to 
where the track stopped. 

do'i,. JTieritJ- ;J Brief im&d^ Jfy bd^its X^^ ^^^-^ legnsf) dd^ 

leilB lio-ciu bciuQl ed :ton blisoo jadi J:jd ^asi-all exi:t lol obam. 

eiew oierf:^ : " ^itl^tol Aei'ijuooo insijJtooB &d:i 

,803lq rteqoiq Tlerii nl .^oa e*teiit l^di imi ^^omi edi no B&iall 

narfw asoiB xloixiw ^^-t^ss'is^s ^- ^«J^ scf cfon fcl.uoo ^erfJ ds 

seeriT .X-swrfp^lrf erfif 1o ^tiaq bevMq edi no becqo^ie :>lou^i erfcf 

©XiJ lo \';nomI^ae;J srftf Y<^ l)6ri^lIa'B;t86 Y-J^iB9lo &ib z:}i>Bl 

.OBGO odS ill aSBBoncttw 

JB-^i 9sII®qqB srfcJ- YC^ Y-ta/JOtrneicfe JbeL-^iB si :JI 

.~aBf>n«r,1*£) sx': .l;.1o©i±l> ;ton ni i.o'ria :fiiw^ erict 

airfl' .(Sisrf f>»d'eir|> d-on ^bbz jQQoIsrsfy eorrefclve iferfctO 

idqoiq '■iGijno' ■v:'Xi/t b od" £)©joiaKiiJ6 ©d oct erio vInlB:Jiao bbw ©bbo 


^;'io:tq-it©*i9q ' nol:toti*rd'aiii a^'^nnbrtdleQ 

aiBlIsqqA bns em&iqsjQ jd d:iod bsslo'lctliD neacf SBri fms ,©no 

.i-31 .III cTC ^-^iXBqiffloO d-lansTtT £>lqflH ogBOlrfO .sv ^oIIoM ^z&ivoti 

i?. 3J-ca'-iiL obIb QI .oyl nolioiriifsfii e ' d'nBbrteleG 

ii ^eoae;^lLr^ea erfcf arflrio ^11- ro©noT:*i9 si cna ^^otb1Qv 

nt Y^s^'^rfS-trf ©jctrf noqj/ gnlqqocfa nx ed^neajs e *inB.5n6'ie6 srf;^ lo ^X^^ 

^iBblnoda ed^ no i'otrrtcf erfi i[isq cct jitJb^i Aon 10 ^eOBlq cfBill orf^t 

neQ^iijcl ixso^A baa ^Llloa x-^'^^^'^ ssw ewo^-i's aonsbive ©dcf xfolriw 

obXjs d'l .beiix/oao nolgllloo ©lerfw s oslq srfjf :tB SJblw ^sol 

oi eeolo £)BOi-sf)lB levBis b bbw eierlJ ctBrfcf :tOBl erfct ssionsl 

.baqqcie >loini sff:t eien'w 


Instruction No. 20 also directs a verdict, and is 
erroneous and excludes from the consideration of the jury whether 
the defendants violated the Statute in stopping and parking their 
car upon the pavement when it was px'actlcal to leave such vehicle 
off the highway, and also failing to exhibit proper lights or 

Instruction llo. 21 is as folloY/s: "You are instructed 
that If yo\i believe frora the preponderance of the evidence that 
the plaintiff, Donald Piper, and Kenneth Tower, Y/infield Odell 
and Leland V/olf, who were riding in plaintiff's car at the tine 
of the accident in question, were all engaged in a joint enter- 
prise, then the plaintiff v;ould be chargeable v/ith the negligence, 
if any, of either Kenneth Tower or Wlnfield Odell, or Leland Wolf, 
which contributed in any degree to the collision described in the 
evidence in this case. " The vice of this instruction is that 
there was no evidence in the record to sustain such an Instinjiction, 
and further the jury are not told what a joint enterprise is, but 
leave them wholly to their ideas what a legal, joint enterprise 
may be. 

Defendant's Instruction Wo. 25 is as follows: "You 
are instructed that if you believe from the evidence, under the 
instructions of the Court, that the plaintiff, Donald Piper, 
was suddenly and without any negligence or fault on the part 

ai baM ^iolbn»Tf jg 8io©ili> osXb OS .oW ,n;oMoj;fTjEnI 

elolrfev dosjB ©vjaal d^ I/sblcfoAiq as ;W inauxavjsq «xi- ao 

10 sii'is-ti •«»qoi^3[ ^±cflxfsB0; ^»i • salllAl ©aXa firfja ' ,YJ*wif3ld ©ri;t llo 

bsiosrtiB: .oil xiolJ-{>u-T:ct-8M 

jjs-dd- '5r^:ieblYrj orfit lo oo^£'r©f^^oq©^ oil ©Telle mH 

lis: .cT JblBh; 


■gan adxt riitw sMassn :i:;*ala'I '.iq 

,tIoW Jbftsle :of)0 £>Iellnl«r to lewoT xf^t&nrteX ifexi. 

arfd- nl\&««f±i*aie»t) noitBlJCioo - aiaef* x^ ^-t J&ed'xJcritcriTbo riolriw 

ifi'- : to »tl t-y© 

^nolitojj^iafll na tiosin n ' sbw «ii©tftf 

.tM jSi ©aliq: J nsrfiiJjl i)n« 

-^siiq'^e^ne *fliot t^sgel a ^Jadt? 8b©61 'xiarfcf od- -^Ildrfw «j©£f:f"9V*©I 

xroY" ravrollot e« 8± 3S iiojj^d'Bni: 8*;tnj5l)a«l©<I 

,-:9qi4 Mflnoa ^lllcf 3nl 


of Peter J. Speroni, personally, or through his employees 
placed in a position of danger, then in order to charge 
Peter J. Speroni with the duty to avoid injuring Donald piper, 
Donald Piper nust shov;, by a preponderance of the evidence 
that the circumstances were such that Peter J. Speroni, per- 
sonally or through his employees, had time and opportunity 
to become coiiscious, by the exercise of ordinary care, of the 
facts giving rise to such duty and a reasonable opportunity 
to perforin it. And if you further believe from the evidence, 
under the Instructions of the Court, that the circumstances 
as shown by the evidence did not charge the said Peter J. 
Speroni with the duty as thus defined, or if you believe from 
the evidence, under the instructions of the Cc-irt, that the 
employees of said Peter J. Speroni did not have a reasonable 
opportunity to oerforja, by the exercise of that degree of 
care elsewhere reauired in these instructions, such duty as 
thus defined, then you should find the defendant, not guilty. " 
This instru-Ction is misleading. Two of defendant's employees, 
one called as a v/itness for the plaintiff, and the other for 
the defendant, testified that the truck in question unlighted 
stood upon the paveraent for several minutes. The danger, if 
any, that confronted Donald Piper was the unlighted triack 

aeoYO-tqjso alii ilgiroirfit 10 ,"tXIj8iioai0q ^laoteqQ ,t lacle^ I0 
aS'^JBddo o;t lebio ai as noiiler baoalq 

^•T.e-:iM bin " -^ii ©xi^ 4ilv? , - 

-i©q ^InoiaqS ,u -tects*! ^arii\ xjfotfe, eisw fcSOixBJaiii-JO'jt.; ^aiicf 

X^±iti;3'idqqo JaaB f IlanoB 

XJ-- -'.ano&a£ sell gxiivJ:^ &ioji1 

Q4d CfBii. 




^eae-^oiqin© 'e^ctnd^nelc .grilJbBsIelm «i r.(jliOLn;)znt alrlT 

lol ':: lot aaend'iw a sb 1)6IIjco eno 

^ i^ noqii- l)oo;f« 


upon the pavement aggravated by the fact that a car with 
bright lights was coining toward him. The collision occurred, 
and the plaintiff Vv'as injured. We think the burden of proof 
was not upon the plaintiff to show that the defendant's servants 
had time to put out flares, but was upon the defendant to shovj 
that they did not have time to put out the flares after the car 
stopped, and before the collision occurred. 

Tlie defendant's instruction Ko. 27, begins as 
follows: "You are instructed that contributory negligence is 
such negligence on the part of Donald Piper as heljred to produce 
the injuries complained of." Then it concludes that under certain 
circumstances, "Donald Piper cannot recover in this action." \'ie 
think the quoted part of this instruction would lead one to 
believe that the plaintiff was guilty of contributory negligence, 
and therefore should not have been given. 

Defendant's instruction Ko. 31 has been criticized 
in Cassens vs. Tlllberg, 294 111. App. 158 and in Vi/'est Chicago 
Railroad Company vs. Petters, 195 111. 298. Defendant's in- 
struction No. 32 has been criticized frequently for the use 
of the word "could have avoided the injuries etc.," instead 
of the word "would. " Cassens vs. Tlllberg supra, Gehrig vs. 
Chicago and Alton Railroad, 201 111. App. 293. 

The Court submitted to the jury a special finding 

rftxr TlflO'ii inr''- -*■■ 

in.tslq erfi naq' 

— -^ , .^.. - -^. .^Sii j_ ;tBxii 

.;0 ©rid' e^o'vA^ or n .heartn.+e 

1)6 S._. 

ni i©v 

f ir'-^-.W rf,"; f -? : 

.,,-l30;£i xioixa 
-. . " -cnp ©alt jfnlrfi 

■=iV:;rr .' r ,...„.,.. . . 8 

. ,^i©cfXIX- ._. .-_ 

. ^, _3d-3'8l .nv vrii2cinfi0 liROlIlfiH 

■;<aIJbali LBioeoz a viu'k 

vjO ei-IT 


as lollov.-s : "Do yo-a find that the plaintiff, Donald piper, 
was in the exercise of due care and caution for his own safety, 
and the safety of his autosiohile at the time of the collision 
in question?" They were instructed to answer this question 
'yes, ' or 'no. ' iVhen the jury returned in Court with their 
verdict, this special interrogatory was answered, 'no,' hut 
not signed by the foreraan, or any of the jurors. It is in- 
sisted by the appellee that this is not an answer to the 
question, and the appellant insists that it is. we do not 
pass upon this question, as we consider it i:nriaterial, as the 
case will have to be reversed and remanded for a new trial 
on account of the erroneous instructions. 

Defendant's given instructions 3, 18, 19, 20, 23, 
24, 25, 26, 27 and 32 either directly, or indirectly directed 
a verdict and were peremptory in their natiore. Eight of them 
were on the subject of contributory negligence of the plaintiff. 
Our Courts have held frequently that the giving of so many in- 
structions on one subject is misleading to the jury, and should 
not be given. In Williams vs. Stearns 256 111. App. 425, it 
is held to be reversible error to give so many instructions 
on contributory negligence. 

Defendant's instructions number 18, 19, 21 and 26 


,^i©i.s3 xiwo eirf -rfet :ii<xJt#ff BO. lafljs eiao ©rb lo ealoiaxe edit nl eaw 
nolaliloo ecjrid^ to faii ■ei^iJ'' ;ta<'©XMofltod'i;j5 si:*-} lo ■^.■+e*liJ8 sriS beiM 

-rt-': 8.1 11 .BTo-mt edct to -^fEB- 'id ,E«jffi»^o'i' exii xd h&ii^te cton 
■T:ewen<3 cts cfoxi el, gJtrfct .^taii^ sells qqs srfi ^d" £ie^aJte 

Qdi-iT.M yLj^lfi.&&jm!Ki 41 asJ)Xiifi-<eup».Cer»i'.;6!« v/»-natl:i;J'B Bltii aoqu eeaq 

Xsi'rJ wen B .anBniai &£» .fe*ei©\r&'i- o .sri Xliw safio 

.enolcfayt^afsl awoanb't'i o ^trrxr^oofe no 

t52 ^OS ,GI ,81 ^8 8nol:*'oxnd'8nl nsvlg a'ctrtfifiixje'iaCI ■ 

beioeiii) Y^J^o^'i-t^i'^ , jlci-pailb lerictia S.S bap. VS ,82 ,32 ,i^2 

fflerfi lo Irf-'jil' .^'UL^d-jan il©rf-;t flili! ,'^prfqDie«E©'q aiew bnjs ctolfiiev a 

.llIinlBlq erid- lo aonesxls^n Y'^oii/cfliinos lo cfostcfxia sxi^J no aiaw 

-al Tfiiflui oa lo 3nlvls ®rf^ ctsxict '^Xiaeupeil ibied svarl qSisjo? ixjO 

bliroda bos ,^'xx/{; sxli od- 3ni:i)BeIa.L"T al cfoetcfx/a eno no enolioin^B 

J-1 ,6Si' .qqA .III 362 emfie . , aiiallilW nl .navlg ecf :fon 

srtoloOincfaril y-^ibxh ob svlg oJ" toiio elrflBisvai 9cf o^ blerf el 

.aonerjlXsj&n ■^leir/di'sctnoo no 
32 briB 12 ^GI ,81 iscfmurr enoliou^ient a^tctabnelod 

refsr to the collision in qu-estion, as an accident. Ou.r 
Courts have defined an accident as an injury suffered v/ithout 
fault or liability, Peters vs. Madigan, 262 111. App. 424; 
Cormvell vs. Bloonington Businesssien' s Association, 163 111. 
App. 4G1; Streeter vs. Hurirlchouse, 357 111. 234. These 
instr^actions should not have been given. 

The testimony in regard to the inspection of the 
Speroni ti^ack, made by L'ir. Gonlcling on the morning of the day 
of the collision, we think Vi^as proper, and even if it were 
not, we cannot see how it would mislead the jury in any way. 

For the reasons stated concerning the erroneous 
instructions, the judgment of the trial court is reversed 
and the cause remanded. 

Reversed and Remanded, 


■-^di lonoiioeqaril 34^ ©^ tiBj-ei n? ^noaiisea^ ©4T 

beeisvei al iTtro® S.Bt*XJ 9iii to :i n^trj^btjl e, , : ioftisrxi 


TATE OF ILLINOIS O i F^' f ji^K A (V^ 


General Ho. 9360 

Agenda Ho. 7. 

Jemile Hlsh, ^» J. Rogers, Lena Wesee 
Harry Doyle, Nora Hint on, Pranklia 
Whitlfttch, Cella .Kelly, John Mill 
C. J. York, Lottie F. Miller, ^ea 
Petel*B>.,,. Nelson D. Jones, John,,,f^anley, 
Bertha ney^olds, Daieie Poi^the , 
Ghae* Walkerr^liftltra -allie;^ Kly '/oolen, 
E. B. airi'ua, Ed ^S^^Qlalf, Millie Strown, 
Osee Tuc-tlmmv, Hattie^f^^^^^e, Ed Logan, 
Krs. Samuel Yoxing, Q^bert iBSaUu Edward 
Ruff, C*dic liarver, ^wen Sarw 
Davie, Mora Olio^^ Lizzie O-ingcr, Evan 
Doutiiit, i-injf J.-i^^i^in, n. L. Donaldson, 
Gbarles Hoirsej/^d. B.^rk2hiire and 
Z«aura Ha^ Do^ 

/^ PlaintiffB-Appeliants 


Shelby CdOAnty. 


ftey^Tounty of Snelby, 
^^ Defendant-Appellee 

RIES8, P. J.: 

Plaintiff -Appellant 8, Jenuiie riiah and 37 otiier bliad persons 

raeiding^ in Sheloy County, Iil.» whose riaaes nad besn luly piaa^ 

t4>on the blind pension roll of that County, fiitd suit against the 

County of Shelby for the reooTery of the respective sums of ;>92.oo 

alleged to oe due eaoh of th^n as blind pension benefits payable at 

the rate of 51.00 per day for the Rionths of July, Au^tust and Septeaber 

of the year 1941, Q-y virtue of tne provisions of an Aot far the relief 

of the blind, op?roved May 11, 1903, and in force July let, 13C3, and 

aaendaents thereto, (Chap. 23, Seos. 279-S87a inc. 111. Rev. State., 

1939) as subsequently aiaended by the 6<ind t^eneral Assembly in 1941, 

(Chap. 23, Sees. ^;86, :^86, 111. Rev. Stfits., 1941) which latter 

aaendaent provided for monthly payments instead of quarterly pay- 

aents of blind benefits acox*uing under tne terms of said Act as so 

aaendsd. tThe case vas tried by tne Circuit Court without a Jury 

and a Jud^ent was entered in favor of tiie defendant County on all 

of the claims, from which findings and Judgsaent of said court oXL 

of the plaintiffs have perfected appeals to this court. 


^ -• 'T- P.I. -rci a4 

-Bit t ,TMfti ' 



The ease w«s heard upon the piejidings and a written stipu- 
lation of facts signed bj respective counsel and duly >idraltted In 
evidence. No further eviaence -tfae offered by any of the parties. 
It aupears from the recitals of said stipulations that each of the 
plaintiffs had been duly examined and found tj be Dlind aihA certified 
to be lawfully entitled to receive relief benefits at the rate of 
^^365 per imnufij under the provisions of said Act and tnat th«ir names 
were auly placed upon tlis blind pension rolls of said County nt 
varloua duteB oeVw?een the yeai»s of 1916 and 1941. In pjiragraph 8 
thex-'eof it was stipulated "That each of sold plaintiffs herein was so 
deter&iiaea to on. Lliaa a;id oecajsie entitled to said beaefit frora and 
after the first day of each of the saontus of January, Aoril, July 
and October thereafter until July 1, xy4i, and frora July 1, 1941, 
on tile first dey of er^on aonth tnereafter." 

All Oi" tne County orders ^ere aiade "payable out of moneys 
appropriated by uie County Board for tiit rtiief of the b^-lnd," nnd 
had otctn. ouly issuea vina elgned by x.he County Clerk and countersigned 
by tne County Treasurer of said County, coverlrus oenefits at said 
statutory rate of one dollar per day payable to said respective blind 
pensioners or befxrer, in .quarterly payments on tae first days of 
January, April, July ixid October of each yeJtr durin*; the period for 
wxiioh their respective naiaeg had been ao carried on said pension roll 
prior to ana on July x, 1941. Follo"sring tne dates of tnelr respective 
iasufince, all orders were delivered to and collected by the various 

P.^ragraph 10 stipulated "Taat on tne 1st da^r of July, 1941, 
tlie respective plaintiffs herein were respectively Issued County 
orders by tne County ClerK of Shelby County, Illinois, oald orders 
being in worda aua fif^ures as follows, to Fit: 

'No County OlerK's Office S91.00 


Shexby County, 111. July 1, Term 1941 




f.iib» yJ^ffc i>P** ^^^' 

1^^ I 


, X f--- 

Xi^QX mmf^ ,1 xitTf, 

The 3ua of Hiaety-C^e and ao/lOO Itoliars OUT OF THE MONEYS IM 'HIE 

FLOYD uomm 

County Clerk 
Count era igued 

J. f^&nii StiXlwftll, Tr&aeur«r. 

axid tiiat the payees n^iaed In each respective order are the plAlntxfts 

Paragraph 1* of etipulatioa reads as follows: *That oa 
the lat day of October 1941, the respective plaiatiffa herein were 
respectively issued County orders by the County 03.erlt of Shelby 
County, IllinoiB, snid orders being in words and fit^ures as follows, 
to wit: 

"Ho.— ^ Oooaty Clerk's Office #31.00 


Shelby County, 111. October 1, Term, IMl, 


The Sun of Thirty-One and noAoo Dollars om OF THE MONEYS 



County Cler'K 
Countermined by 
J. Frank Stillwell, Treasurer 

and that the payees naaed in each respective order are the 
plaintiffs herein." 

It was recited in Paragraph 14 of said stipulations 
"That no other sim ot money was paid of the defendant herein to 
the respective plaintiffs herein other than accordlns to respective 
orders mentioned in pajTagraphs ten and twelve hereof during the 
period between July 1, 1941, and October 1, 1941.*" 


:'n^f& X^mfoO ^J-JiT XB C: ■•iff 

•mil elli^rcIftJCq eirXJosqe^^'x &dt tSJ^^X rt»^<ht oO 'tc vi^ -eX 9ifJ 
At to ;i't«JS) V^<^ «iU t<^ titiJno \«rxiiK)0 £>#^ai«l ^•vlJoti(;ao'X 

O0.X&$ ecmo a»iisXt> VttWiJO »*' 

4jm?o9 xcfx^xie 

^•XdBXXoa ooj\ou bnA dflC-t^'xiijfr to oKte «itr 

•xsatiBA^^i tXXavXXlJfi 3Uui*lV .t* 
•.aisT«*;4 tltJ^JjOiiXq 

■&^1SC' y ^.tMo(?*;>^ oniUt laiilo tUian'sm Ml£tl9nlMlq •TX«t*»^«^ Mil 

<);9^ B<xi*cU3 to9tfti( e»vXMri NtU ap^ Mitfiirt&A'Mq HX teflOZlOMt rx9M6 

,X t*do^«0 tiRt\ ,X^ex ,X tXJ?^ iA«v^«d AcX'Xiitt 

Following tiie naiaes of eaoh of the 56 plalntlffa i?Mch 
are listed in Parsgrapli 17, appears the stipulated dates during the 
years from 1915 to 1941 on wiiich eaoja plaintiff had been certified 
to t.He County Board by the County Clerk for blind pension benefits 
and also the aatsa of the first subsequent day of each quarter of 
the year when tae respective plaintiffs z*eceived their first County 
orders. Paras^aph 17 coasludes as follows: "That each of said 
plaintiffs thereafter, on the let day of January, April, July aiul 
OotoDer of e^ich year tiaereafter until July 1, 1941, that being the 
date of the last order issued for a quarterly payiaent, received an 
order drawn by the County Clerk in payw^eaz of said Blind Pension.* 

Paragraph 16 stipulated "That on and after July 1, 1S16,. 
and quarterly thereafter until July 1, 1941, that being the date 
of the last order issued for a quarterly payment, orders were dr?iwn 
and Issued tisT the County Clerk In payment of Blind Pension to the 
reaalnder of said plaintiffs not named in Paragraph 15, on which 
was designated that said orders were in payment of said Blind Ptjuslon 
for the quarter ending on or about on the date of said order, i.e., 
for uhe quarter preceding the date of said orders." 

Paragraph 15, so referred to, covered the orders in pay- 
ment of blind pensions prior to July 1, 1916, as to six of said 
named pensioners concerning which it was stipulated that the orders 
issued prior to said date recited •'that said orders were ia payment 
of said blind pension for the quarter ending three Jionths after the 
date of said order, i.e., for the quarter ensuing." The nasea of 
the six parties so mentioned in said Paragraph 16 also appear in the 
certified list and among the 38 plaintiffs whose niuaes are set forth 
in Paragraph 17 of stipulations, and who received orders for quarterly 
payments wnich recited (Paragrs^h 16, supra) that they were*for the 
quarter preceding the date of said orders," which were so issued 
quarterly during the entire 25 year period after July 1, 1916, to 
and including July 1, 1941. 


.ui^;. ■■•i su ii:- . i-iiajM* '.Hlitii,mbi 

O.? ,;;I<.- ^X oi *■ .X'294'XAijp 

.i>t^X «X xU>^ i^aiiJiiXotkl btM 

Ciap. iJ3, See. 380 111. Rev. Stat. 1939, provided ae 
follows: ''Tiiat all aale persona over zhs age of iil years and aH 
fesaAle persons over the nue of 18 yestrs, wiio are declared to be blind, 
in the auumer hereiiiafter set forth, aiid who come tiPithln the pro- 
visioxis of this Act, enali receive as a oeaeflt three hundred sixty- 
five dQllare per anaiua, payaole quarterly, i^oa warraiits i>roperly 
dr&tm on the treasurer of tae county of n/iich such person or persons 
are residents. " {190S, May 11, LawB 1903, p. 138, Ho. iJ; Uiv>s 1915, 
p. 2bBt Ko. 1; Laws i9Si5, p- i?4, Ho. 1; 19>J7, June .>4, Laws 194^7, 
p. aOiJ, No. 1.) Section ?J85 of said chfip^r contained the following 
proviaioJit "The county clerk i^hall register the name, address and 
ttuaber of applicant, and date of the ex-^aiination of each of the appll- 
eants who has been bo detenained to be entitled to said benefit, at 
eaoh meet ins? of 'such county ccimai as i oners or county euperviaora of 
the couiity, He sh'-dl certify to the county coaijissioners or county 
supervisors of the county, tha names ind residences of each applicant, 

90 detemained. by the ex'«'»lner to &e entitled to aaid benefit IQSas;: 

and such applicant shall be entitled to said benefit fvon 

ajid after the first day of the months of January, April, July and 
Cctobt;r, taereafter, to De provided for as set forth in section 8 
of tais article. (1903, May 11, L?».we 1905, p. 138, No. 7; 1915, 
June 25, Laws 1915, p. *s.*J6, Ko. 1.) in force July 1, 1916." 
The Gi^nd (ienarai Aaseably in 1>»41 amended said section 4Q0 by changing 
the wozMs "payable quart«rly"' ao as to read 'payable monthly" and re- 
eaaeti:3g the saine as so amended in ;m Act vnioh vae approved Isy the 
Governor oa July 17, 1941, Section i^bS was also amended at that 
tias so aa to conclude aa follows " and such applicant shall be en- 
titled to said benefit froa and after the first day of each aoath 
thereafter, to be provided for as set forth in section 8 of this Act," 
(Chap. 23, Charities Sees. i^SO, ;i85. 111. Rev. Stats. 1941.) 
Said Aet was passed by the General Asssably prior to July 1, 1941, 
and signed by the Oovt^mor on July 17, 1941, and therefore became 
effective on the date of such approval by the Oovemor. 3oard of 


p. f.^iM-v -i.a .efeSi ,I:J?^. .VsP. 



r.g. HYJeCi'i'l 


♦ I* 

B:. f =4:a N'.cr f» r.tff!' 

3 £>a6 

?.. f>«l 

F.C: rititit. 

f -,,/! ., ^,:* 

.k!-», A^ ,^ -,J-** « vr , . ' ■•; - It^ J,s,l >->■: 

# 1 A^;>-^^A 


Education v. Morgan County, 316 111. 143, 147 H.S. 34; People v. 
Kramer, S^e 111. 51ii, 160 M.E. 60; Peuple v. Village of Oak Park, 
572 111. 488, ^4 n,R. 2d 571. 

/kppellanta aasift,n error on tiie o'xrt. of the trisU, court la 
findln^^ tixe isBues in favor of tiie def eidant and In entering jud^jyaent 
at^alnst tiiti plaintiffs in oar of aci-ioa and contend tnat tiie parents 
made on July 1, 1341, to eaoii plaintiff covered "tae quarter ending 
on June 30, 1941,* aa taereln ea^ressly recited and that tlie findings 
and Judgment aiiould have oeen in favor oi" eacii of tne plaintiffs for 
the period of 92 days included in the months of July, August and 
SeptefflUer, 194;^, in the sum of $92 and costs. 

From the stipulations, it appears thfit the l&st quarterly 
orders drawn by the defendant County and delivered to each of the 
plaintiffs showed on their fnce that they were issued in p-?,yraeat 
"For the relief of the blind, for the quarter ending on June 30, 
1941." It v?n8 further stipulated tliat no orders were drawn and 
delivered thereafter until October 1, 1941, which latter orders 
recited tnat they were for the month of October. A prlaa facie case 
was thus clearly laade by the plaintiffs ae to non-payment of benefits 
due each of tnem for the aonths of July, August and September, oora- 
prising 92 days, at tne rate of one dollar per day. The provisions 
of tne Act for tne relief of the blind havln«5 been complied with, 
tne right to receive such benefits had oeoome a vested riisht in 
each of the plaintiffs. Proffitt v. County of Christian, 370 111. 
550, 19 H. 3. 2d 545. A right of action accrued in favor of 
each of the plaintiffs as such blind pensioners for the recovery 
of a Judijaieat a^salnst the Coiinty for unpaid oeneflts. Proffitt v. 
County of Christian, aupra. The defeadant, not contesting 
rit£ht of plaintiffs to recover unpaid benefits, has plead pay- 
ment taereof . Paymexit is a aiatter of affirmative defense, and 
in the abst^nce of evidence in support taereof, it will be presumed 
that it has not been made. Scovn v. County of Coolc, 199 111. App. 
351; Bejjsa v. Chicago aon(^& Surety Co., 2?© 111. App. Q21; Tribune 
V. UoOarthy, 201 111. App. 586. Tne fact of payment as an affirma- 
tive defense must be proven by a prepondeiranoe of the evidence. 


v fslqofl*? \!^- .n,¥ f^l ,^/ .ifl fi£^' i^jnu'^^ n.*^-ioM ,v nolSMUib3 


AbM^ 'y."Ui;;X& 3Ud^ a&« 


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&Tt cJ «lll^nJL«Xc 




-• ( .; . , / v". TO »:; ir-- .». i- *■, 

^nJ nl 

.qqiv .III X0« ,XiA. 


<it>ri9bttn BdJ lo soisi iairtoqatq o ^a aoroaq »cl J»ii« •aiisldb 9XlS 

McGovem V. City of Cnicaso, -iei 111. ii64, 110 N.K. 3; Swift & Co. v. 

Mutter, 115 111. App. J«74; Sooae v. Tae kiatate of Slise, 98 111. App. 


341; Laa^ 
4pp. 167, 

5 hat\ RV 

341; Laa^ell v. Oaisa, lij2 111. App. 513; Kentisy v. 3ritt, 197 111. 

The stipulations ahov toat for tue period of a quarter of 
a centurj exteadioej froa July 1, 1916, to and including July 1, 1941, 
tiie quarterly orders were re^iularly issued for blind pension benefits 
to various plaintiffs, un all of wnicn orders it vag designated 
"tnat said orders were in p.-iyiaeat- of said blind pension for* the 
quarter preceding the >;ate of said orders." ItaniSUHge could not be 
clearer in suj^pozaing and setting foi^th tne specifio intent and 
understandinti of tne parties, aiid in snowinj^ wmit wad actu'?.lly done 
and intended cqt the county officials froia their own records and re- 
citals as eyldenoed by hundreds of warr?i.ita so issued by the County 
Cleric -ind duly countersigned by the County Treasurer who piid the 
saae to the various plaintiff beneficiaries out of the jaoaey in the 
county treasury appropriated for the relief of the blind. It is not 
shown that tae defendant had olairaed thit any aiotaice was aade during 
the entire period that the orders were so drawn, nor does it appear 
froa the whole of the record as we view it that any lai stake was so 
aaade by the p.irtles. The aaount of each of the first orders delivered 
to the respective plaintiffs on the first day of the quarter follow- 
ing their certification on the pension roll after 1916 is n.t shown. 
It is si;snificant, ho^eiridr, tnat in six Instances the orders issued 
by the defendant County prior to July 1, 1916, speclfloally recited 
in lancsuage contrary to that of til subsequent orders tiiat tntiy uere 
payjaent in advance for tae enauin,i quarter, and Uie orders Issued 
on October 1, 1941, also reoiteot tuat they were in (iayweat for the 
■onth of Octooer, tnus evideaclnt^ defendant's knowledge and under- 
standing of the different terms set forth in thii respective orders. 
It would not be a reasonable inference ther< f roa that tli® jiarties 


.xjt: • f5::S*sai; i?ua .<iV4. 

> iidlJiftt to Xl^ 




I &-Jt'9V. 

who issued such orders over a long/ period of years did not recite 

the facts nor uaderstaod the plain and unambigMous lan^ua^se of the 

orders so drawn loj them, so understood and received lay the plaintifjESs 

and now In question. 

The lesuanoe of tae orders containing recitals ot the 
purpose, aiaount and nature of payments, when so received and 
collected by the plaintiff a^ constituted aeoeptance imd receipt of 
the warrants for aoneys due tiiea on terms therein set forth. The 
pritaa facie evidence of the facts recited in such receipted orders 
must be overcome by a dear preponderance of the evidence. 
Snais V8. Pullman Palace Oar Co., 166 111. 161, 46 U.K. 439; 
People vs. Davis, d&9 111. 266, 273, 110 N.E. 9, 

Xae burden of iBipeaching a receipt is upon the p.'sTty 
who ^ave it. Lon^ vs. Lon^j, ISi 111. App. 409; McEUiJuiy vs. People, 
1 111. App. 680; House vs. 3eaic, 43 111. Apfl, 616, 617; McOovern vs. 
City of Ciiiaatjo, 202 111. App, 139. ""he same rule applies herein. 

In Winchester vs. i^rvjsvenor, 44 111. 4i35, 4^6, it was 
held that a written x*eceipt stay be explianed by parol, "but the 
proof by ':?iioh it is done must ue clear ano. uniaistaicable. A 
written r«icelpt is evldeace of the highest and moat satisfactory 
onaraeter, ind to do away with its force, the testimony should be 
eonvlnclnt^j uid not restln^^ in mere iiapressioas, and the burden of 
proof rests oa the party atteiiptin*^ the explanation.* This rule 
was again approved oy the Supreme Court in Kn.ils vs. Pullman Palace 
Gar Co., supra, wiiereln,at page IS^^the supreme Court used tiila 
lan^iuage '*It is true that a written receipt may be explained by 
parol; but it la prima facie evidence of the facts recited in it; 
and, tne evidence furiiisned by it oelng of tne hi^iieat and most 
satisfactory caaracter, its force can only oe impaired by testimony 
which is convincing. The proof, offered to explain it, must be 
clear and unmietoxable. It must be overcome, if overcome at all, 
by a clear preponderance of the evidence, (i'lnchest-er v. (Jrosvenor, 
44 111. 4iid; Rosenmuftller v. Lampe, supra; Heal t. Handley, 116 111. 
418).- ^. 

iq *u\»l-'. astoiox ism 

BilciqB sLl/^ ^msp 15 





If otiier recordi timn tiie orders tiieiaseives texided to 
prove pa/aent for different periods or quarters tixan thvse specifi- 
cally deeltsaated In all of t^ie orders, auoh recoils, if any exiateni, 
were in the possession fuid oonu^ol of Uud defendant upon t^om it de- 
volved as a aatter of affirmative defsJise to produos auoh proof in 
order to overooae the olear and uaaablgUQus recitals of fact appear- 
ing on the faee of the county w^urrants and receipted ur<lers« 

\ aiataJce of l^iw, if any, as to whetaer thfc wlind relief 
benefits "pfiyable quarterly*' linder the former statutory pro\'isi<m9 
and "payable aonthly" uiiuer the Act as antended, beoaoae so payable 
In advance or p?>yable at the end of each quarter or aonth in queetioQ 
need not be decided herein, as fk asistaice of lav, if any, could not be 
corrected or availed of as a defense in this prooeeding. v»'e also 
hold that % sBista^e of fact, to be availed of as a defense, when so 
pleaded, must affirmatively appear and be proven by a preponderance 
of the evidence. (Citations, supra.) Whether the quarterly pfiyaente 
In question were actually aade at the etxA of each quarter an expressly 
recited on the face of the various orders or were »,ctually paid in 
advance contrary to tne lantsua^e of such recitals, beo«uae a question 
of fact under the pleadings and evidence nerein. 

We find and hold that it a:>pears fz*oai the uuinifest weight 
of the evidence that the plaintiffs did not receive payiiont in ad- 
vance of the blind pension benefits due and owing to each of thea 
for the 9iJ day period ccHiiprising the months of July, Aus^8t and 
Septeaber, 1941, and taat the orders issued on July 1, 1941, in 
the sun of ^1 covered benefits due and so paid lay the defendant 
for the iJi days of the months of April, May and June of the pre- 
ceding quarter ending on June SO, 1941, as therein specifically 
recited and set forth. «/e furtijer hold that in finding the isrsues 
and enterlnfS Judgment in bar of suit and for costs in favor of the 
defendant ?ind ft^^XneX. the plaintiffs, the Trial Court acted contrary 
to the aanifest weig^it of the evidence and that reversible error 

apoears in the record. The judgment of the Circuit Court of Shelby 

the cause is 
County is therefore reversed and'' remanded for I'urther prooeedin^^a 

in accordance with tae noldings herein. 



fiOJ. .. 

■rt.f lo 

■Via©** >;vji 

Mj'w.' 'if 










General Ho. ^5^-^ 

EDWARD W. B^O^^ a Minor, by ^^^ 

CHARLE£ BROWN, Hir-Weae^^-ErJ^^^li 

DAISY BYBEE and WILLI b BYB>€, "''■**»->««,^, 

Plaij^ff s-Appellees, 


IS-Vy^-,, ■*S«''SS*;*i-^'' 

Circuit Court'*-^ 
McLefin Coimty. 

McCANN, ??.rtn©f£. Doing Business 

Defendants-Appellants . 


This is an automobile collision case. 

Daisy Bybee and Willis Bybee, her husband, brought suit 
in the circuit court against Robert H. Steed snd William MeCann, 
co-partners doing business under a trade name, and against Melvin 
Apell, as the driver of the co-partners' delivery truck. The co- 
partners filed a ccunter-clai.Ti ac^alnst Mr. and Mrs. Bybee. 

The Jury returned a verdict against all defendants, in 
favor of Mrs. Bybee In the sani of |175, and in favor of Mr. Bybee 
in the sum of $350, and returned a verdict of not guilty on the 

The circuit court entered judgment on the verdicts in 
favor of Mr, and Mrs. Bybee respectively, as plaintiffs; and counter- 

All threfe defendants bring this appeal. 

Edward W. Brown 7/as a co-plaintiff, but is not connected 
with this appeal. 

,TDIHT3ia laiHT 



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• eeeo .noifc:xiioo aiJdoc-oJLfE i-^ ig.' • 
nJtvXeM c^anLegs fens tScssn 303-1;: z 'i-T.oniJ 5s3rLi^i;o ^n..rq9 a,aficrf'^iiq-oo 


No question of the sufficiency of the pleadings is 

The Gollision occured .about the noon hour on August 23, 
1941, in the southwest quarter of the intersection of Colton 
Avenue and Jefferson Street in the City of Blooniington. Both 
streets ^ere paved. The paved portion of Colton A-venue was 40 
feet in vidth. The record does not shov; but we will assume 
Jefferson Street was of about the seme width. The record does 
not shew there v.ere ^ny stop signs or traffic signals. Jfirs. Bybee, 
accompanied only by Edv>,:^rd W. Brc?.n, a four year old child, was 
drivlnr r Chevrolet .^uto.'riobile southerly on Colton Avenue. Apell 
wag driving the delivery truck easterly on Jefferson Street. The 
front end cT the truck r-n into the ri^ht hand side of the auto- 
mobile "between the rear wheel and the door." The foregoing facts 
are undisputed. 

The first contention of defendants is that plaintiffs 
were guilty of contributory negligence. 

The only witnesses who testified as to what occurred 
at and Just prior to the time of the collision were Mrs. Bybee, 
a disinterested i«itness named Lott who testified for plaintiffs, 
and Apell. 

Mrs. Bybee testified she had been driving a car at 
least 15 years; that in approaching Jefferson Street she was 
driving about 15 miles per hour, and when about 15 feet from 
Jefferson Street she sloped up and looked both ways, but saw no 
one approaching on Jefferson Street and then proceeded into the 

Lott testified ne was driving south on Colton Avenue 
about 100 or 150 feet behind the Bybee car; that the Bybee car 
was going about £0 or 25 miles per hour; that as the Bybee car 


ai agclrijsslq' srid' "; noises*' 

,§;S ijASJ'gjuJi flQ 'iiMMi ace )tu3T>t> iSorj^Iififeo -^^IT 

.,-0.' ' .ittl^aoiv it&up 3'a9wriiij'" 

: • a/.i* &isa&vk no;tloO lo ixolif-fffecj b-avSQ aril .fesviSQ aiaw a^asi^J-a 

:5iKrj"-i3f, oria CfCf; 

-Q?o& ■'j'rio ic 9fei-a feced ailjiiit «/0 os^ii-I. cat, liourt^ ariJ- lo fin* itriOTV 

^saofi^a ,:, iM 919W nolaili. vld sri: Jaut ^^' ^^ 

.rise A fcfiB 

.iHOil J-94>1 ai JiTOcfB ne -q asliw 81 ;Juod'B. 5flivtt6- 

on wȣ voXa arf* cJtSTuta noanallal 

-iAjS ari> i-^'srJ^ hnlrisd laia?- OfiX ^o OCX isscd* 


was going through the intersection he first sa\t the truck when 
the truck was about 150 feet west of the poizit of the collision, 
and he saw the trucls strike the Bybee carj th?:t in his opinion the 
truck was going betFeen 45 and 50 miles per hour and did not slow 
do^m before the collision. 

Apell testified that he was going about 25 miles an hourj 
thst \^hen about ten or fifteen feet from the intersection he looked 
first to his left but did not see the Bybee car; that he then looked 
fo the right, and "I didn't see her car until I iictually hit it. 
* * * I couldn't say how fast she was going. ^ * * I guess I was 
about five or ten feet from the Bybee car m-hen I first noticed it. 
The Bybee car ivss practically out of the intersection and ny car 
was entering the intersection at th*t ti:ne." fip-ai^d— ^aeii-l'i^eA 

Defendants cite Section 68 of the Motor Vehicles Act 
(Par. 165, Ch. 95i, 111. Rev, Stats. 1941,) which provides that 
"motor vehicles travelling upon public highways shall give the 
right-of-way to vehicles approaching along intersecting highways 
from the^fc*^", aad contend thut the evidence shows such a clear 
violation by Daisy Bybee of such statutory provision as to amount 
to contributory negligence as a matter of law. Generally the 
question of contributory negligence is one of fact for the jury, 
taking into consideration all the facti- and circumstances shown 
by the evidence. ( Foreman Bank v. Chicago Racld Transit Co ., 252 
111. App. lEl pjid Classman v. Keller . 291 111. App. '^tik.) The 
question of contributory negligence becomes a question of law only 
when it can be said that all reasonable minds would reach the con- 
clusion under the facts stated that such facts did not establish 
due care and caution on part of the person charged with contributory 


::iii aolniqt iiri ai *i3n sed^S sn3 ©Mlirs sJocrrt* Mfcf -if«a erf HA* 

»ol8 *cfl bib fcns twori loq saXln OS bnr. 3^ naew^scf jnlos bbw itotrtJ 

wiolaliXof) a>iftf ©jjolsd ttwob 
\iuod n» Qsliffi Sis! duocfa ^loy 8j3w eri ;t£;rii .D»lli:^a9;t XlsqA 

be>IooX flsrfc^ sri i^^rlt pAO ©dtfYS »riA aisa *ofl ijlfc ^stoi^, J?l«i^ ^^fc^^^^^ rll 

.,tl tl/1 -^XXAi/^Joa I Jl*r. '»nfelfe I" foa^ «:tririii sri^ oJ 

a.^*.' I ■is'? .giSX^ .e«.w sria isB'\ wod t^a ;}.»n&IifO*' I « * •* 

i*drf a»f)lv«iQ[ AQt:iti {^U-^^1 ,si&ii ivtfi .1X1 ^fciC .fiO ^aax .aa^) 
te^io 3 ii^yS gWofie soars 51vs srii turii bn^^icioo bRR ^^''ts^^i^tiJ^ s<.oi1 

♦riT (.3dSi .^q ..;ea ^ itj?!!®! «V flxsfflaaglQ feiss X2X ,qqk .1X1 

"?XflO ^tbX lo rf©X;:ts»up « 6»fl!G09Ci aona^iXn^rt V£D*sf<fltd'n«o 1© noltfatup 

-noo 9ii:t rfo*^8>t bXx/ow a&niin 9fcJdaoe»»T Ila isilt bls8 »tf ifuts>'tt a»tN 

rialidsi^a^ itofi bib s;t'j«l rioua iEri* b«^a;tfi 8;t3sl »it? labnir noXat/Xs 


negligence. ( Thoraas v. Bucloanan . 257 111. C70.) The ;iiere fact 
that the contrib\3tory negligence charged against Daisy Bybee 
arose from an alleged violation of a statute does not tske the 
case out of the operation of the foregoing rules. The duty to 
yield the right-of-way under Section 68 to vehicles approaching 
from the right is not an absolute duty but depends upon the facts 
and circumstances of each particular case. Thin principle is made 
clear in Heidler Co. v. Wilson & Bennett Co .. 'c;4S 111. App. 89, 
in which the court says at page 94: "It would semi to be clear 
that the statute does not mean that the driver of a vehicle ap- 
proaching an intersection must yield the ri?:ht of way to one 
approaching the saice intersection on his right, without regard to 
the distance that vehicle may be from the Intersection when he 

reaches it or to the rates of speed at which the two vehicles 

an intersecticn anc' he sees another vehicle approaching 

are traveling. When the driver of a vehicle approachesAfro-a the 
right, at a greater distance fro-n the intersection and at a speed 
such that, in the exercise of due care, he believes he ?/ill be 
across the intersection before the vehicle approaching from the 
right reaches it, then, in our opinion, the l?itteT* car is not one 
'approaching fro3 the right' within the -ne-nln;^ of the statute, 
and so as to require such driver to stop or yield the right of 
way. ^hether^ in exerclslnn his judgment and going ahead, the 
driver exercised due care, is, 'Are repeat, ordinarily a question 
for the Jury to decide." 

We are of the opinion that there i^as ?.niple evidence to 
justify the jury in finding that the plaintiff Daisy Bybee was in 
the exercise of due care at and immediately prior to the time of 
the accident, Ifeliere there is such evidence we are obliged to 
sustain the finding of the jury on this issue. ( Dee v. City of 
Peru . S45 111. S6.) 

sbmr sx sij^lonliq airfT .©aaa '3sXiir©i;?isq rioss lo s^onfl^J-eauiS'sio bni 

5'-^8 .qqA .XXI 5*S ^ »pp. J^ ^ffflQii ;^ nc &IlW .y..oO TeXb leH nl rc^io 
i?.^xo 5d oJ /ii'^as bin - 'jgsq *« s^fta iiuoo id;f iloXiftl nJt- 

enc c.i vaw 'io 9ri:t feXsl'^ Jaum nol-:ti>ee"f9is.t iir, snXriOEOiq 

aeXairief ow;J ©rfcr liotMm ta b09(i^ Ito a4>«fi.«- eri:^ ojt tfe #i »d£(o««7 

;.niilOBO'rq:TB aXoxriey isrid-ons ssflp. ^-r Bn^ noxcfosa'iecrni ns 

ads a'O'il^gorfoaoiqqa ©Xcl; f®vl7:6 ai^;J nferiW .jiiilsvisui sis 

Sif rilw an aavalX^ef "a.coigxe c»r- i^^ doini 

»ifi meil gnlrfoaiOTQqjB ©X»Xrffv erf* sialsd aoJt-ionzmsiat ©tii eeoip* 

T?>ylt£b rioira etioparf o*? «fl ob boa 

-Br:-' .b-ft'~:i. 9.0lo^ baM'^>ta&m%bu': ■ Isisnsxs ni ^TteriSTfcfllf • .X*»- 

nolle© li^HlbTp <.t«0q^T '•^•i«o ^t^^ isaioiftxs tsvltb 

'♦.30.!:: s^^^ 

Ov* eoxisbivo 9Xq«!6 antv eii- o era 5<"; 

r.: - 5 Jv: ^riijja lltial&lq »rii srtil* aaXJbi?!'! aX xnui 9iiS Yli^ewt 
to ©mict '9ii:t ci 10X0:0 ^XscfflibsflAl t>06 d^s bibo suJb lo •atotsxs ericf 

lo galO .Y 33Cl ) .'airsal «Xdi no ^fxt/t <>ri* ^o galbnXl srfJ" nli3;^aj:f» 

(.8S .XXI sj^5 ^toaS 


Defendants next contend that plaintiffs' Instruction 
nuunber 4 was erroneo-us in referring the jury to the eoaplaint to 
deteraiine the issues, there being no instruction v/hich told the 
Jury what the issues were. The instruction was objections.ble in 
this rci^pect, but >.«;e do not think such error v'ould justify a 
reversal of this pr:.rticular cuEe, (See Waschow v. Kelly Coal Co. . 
£45 111. 516.) j£oreover the defendants are in no position to urge 
sue.'; error for the reason that one of their instructions told the 
jury f^that the burden of proof * * * is upon the plaintiffs to 
prove by a preponderance of the evidence that the defendant n&s 
guilty of one of more of the specific acts of negligence charged," 
which, of course, likewise necessarily referred the jury to the 
complaint to determine Tvhat acts of negligence v^erc in fact charged. 

Plaintiffs' instruction nujjiber 5 told the jury that if 
they found for the plaintiffs then Willis Bybee wis entitled to 
the cost of the necessary repairs to his autoaobile. It is, urged 
thrt the instruction erroneously further stateo that he was entitled 
to the value of his autoaobile while he was necessarily deprived 
of such use, and tc the: loss of services and comp-mionship of his 
wife, etc, there beir.g no evidence of the value of such use or of 
the value of the services of the 'Aife. 'cVe believe this contention 
is frivolous for the reason that the undisputed evidence dhows 
that the cost of the r*pairi- to the automobile was |3£S,15, and 
Mllis Bybec also paid g. hospital bill of ^S.OO sjid a doctor bill 
of $1£.00, made necessary bec:.use of the injuries to his --^ife, 
while the verdict cllowed f.illis Bybee only the suji of $.250. 

Plaintiffs' instruction number 6 is also cotnplained of 
for the reason thr^t it referred to the complaint , Whf^t we have 
said as to instruction number 4 disposes of this objection. This 


ni ftldsflcliftatio saw nolio:j' .si^w aaussl sri^t ;tc|(w yJjj^ 

;; 'ClWgi/t biwow. lo'ii^ itoi/» iialiU icr: ci; sw tiicJ ,.j'03q€Si; .::lii;f 

. . q O 1 ^.oO Xx.i; g7.. .V -aojic asfe :.5iLf,uict.a«Q aid' lavei 

. iiv;tai«iX«5 add: tSQqjj . ■• ■" lo^in i® fls^i^ufii ■^•i'j vtwiJ/' i'i*iL 

aifl lo q.ldaaoioiSQjaiQa o .aa^I fli^4 o^ iiiju; «$?. 'lo 

bm ^^l,<c'*<^■^ ao» oXJido«K)4«;b .^aj. ©4 ..^-xifi^fld aaj 1q w«oo adi jiiriJf 
Ilicf Tocfocfc ;?. brus OO.Sllo XXicf JLsvtlqaori « .f3JU<l',(»»Xc 3»<ixS, ftiXilf 

i*j-* iiu \fefaio t*3Q\ti ^i^iiV i^iifoXXs JaiJjiav, ©d^ ^»Xldw 

^yuci sw.JodW •^iiXi4j;q&|2|0,. 8<U o« r^ai-islai tX. iad^ no«i.di_ tfUr, .tot 


Instruction If also objected to on the ground thai it statea that 
if the jury should find for the plaintiffs then, to enable the Jury 
to estin-u^te the smounl of ths ylaintiffs' danicigefc, it was not 
necessr.ry thnt any ?.'ltnes£ should have expressed an opinion aE to 
the Bsiount of daaages, but the jury might make such estimate from 
the facts end clrcumst^sTLces in proof reldting to the subject of the 
extent of plaintiffs' daiiiaf:e£;. This instruction, practically 
verbatim, was approved in Richardson v. Nelson , L21 111. £54, £58. 

The only other co;iplaint of the defendants it; as to 
plaintiffs' instruction niiiub^r 7, '^hich, in form, is the instruc- 
tion usually given wit.h reference zo the damages allocable to a 
plaintiff for persons-l injuries. However, It is complained that 
the Instruction also erroneously told the jury that in assessing 
the damages oTVlvti. Bybee they should take into consideration to 
vrhct extent she had been injured or laarred in her personal appear- 
ance. If any, and among other things told the Jury that they could 
allow her z. ff?ir cc:apenEatlon for her damages to the extent to 
which she had been injured or siarred in her pergonal appearance, 
if ciny. It is also contended in this connection that the court 
erroneously refused an instruction tendereot by the defendants, 
which stated that in deteriiinlng the damages of Mrs. Bybee the jury 
had no right to tike into consideration her inentcxl suffering. If 
any, resulting froni eTibarrassment or humiliation because of any 
disfigurement or marring of her appearance. 

The giving and refusal of suca instructions was error. 
(See Chicago City Ry. Co. v. Anderson . 16E 111. £SB; Cullen v. Hlggins , 
£16 111. 73; C. B. k w. R.H.Co. v. Hines , 45 Ill.App. £99j C. & G. 
T. Ry. Co. fcourney . 69 Ill.App. 549 j West Chicago St. R.R.Co. v. 
James . 69 Ill.App. 609; City of Decatur v. Hamilton . 69 Ill.App. 561; 
Chicago City Ry.Co. v. Mauger . 105 Ill.App. 579.) 

od- aa itoJtnlqo rtB Di)««yrEqx9 av^tfl t* Iberia aesn^ivr^ns j^rtt YijBtatOfiti 

tkflff 1o^ 09 i^sj^sL tJtcfjfelsi 'ioo'xq ai aeonfe^Jaimo'iio boo e^Shsl •!» 

.8dS tJ^S: IIS ., goaIag '..y J:^:o al>^kfio > fl ni bsvo^qtjg a*w ',«iitB.c!ft»ir 

-•Difiitaal 8.. aol id: ^^ii£tt \ V t&cffeiyaao I^fswt^ani: »3ll:ij-fil*le. 

SnJt8 8§33S fii ^e./i,1 ^-xut a^^- &Io^ Xl^x/oaiiMi® OiI« ftoi*otiF*!ci««nK8^ 

-itscqs IJhitdsfsq' isrii ni 5*ltij© i© fes-mtf-'Jt fl»*rf barf ^rili ctfidint'& *kfNf 
blifoo x®rf^ #»i&^' X^t' «^^' t'-IO'* agnlrfi t^ffS^c srtoaHj fen*' i-^ptjs" If' «99il» 

<#0fi£i«»qq« X3fl04i-2«ci 19/1 flti b'»^^aci io i>ttTtrtfli rtssil bad »JJ3 Kolft* 

11 Vl«i*[^llir« lainaai'' i«£l ab 13 jfri* Me coo o*nl »3t£:f 6i tJ^glif 6i( btfl 
Yrxe 10 iiai/Abstf ii'oliJilIliatfjfS 10 :fn«»aasti.&crc9 aotl ^SLl31uB9t ^vne 

. 33 xijsiij 3 qqs isfi lo aaliiBin lo ^irftaraii/gllalfc 

i5iliaali_^sX-miIy2 iBSbt .III aSI . iioa-ubn/* .V .oD .vfl v;t lO OLt^olriO 9«3) 

^*-A_^ jees .QqA.xii a£. .^« >gm .v .oD.;i.ii .-^ j& .a .o ;sv .xxi ax^ 

.V .oD«jI. a .^a o^^koidO JaaW {8*3 .qqA.XXl «a ^ •<i9niuqii .c'O .vA .1 

;,JoG .qqA.XIi fitt ,ffoJXlils.?£ .v 7i/.1ao aa lo rilO ;90a .qqA.IXI 69 . aeautX 

(.eVrj ,qqA,XXI 30X , i9.^-j^M .v .oO.^fl vet 10 05tesIriO 


Were the verdicts? in this esse excessive or apparently 
excessive we would be inclined to reverse the case because of 
the error in the living and refiasal of such instructions. Hois'ever, 
in this particular c&se we do not consider that such error justifies 
a reversal. Prior to the accident Mrs, Bybee was in good health 
and did her own houses-ork. She testified that as a result of the 
accident she was cut on the head quite a bit, her right arm was 
hurting her quite a bit, and she had bruises on her body and legs, 
that she was in pain find stayed thftt wey for six or seven ^©eks, 
during which time she was \in5ible to do her housev/ork; that two 
scars on her face festor up once in a while and little pieces of 
glass «ose out of them; and that at the time of the trial she could 
hardly lift her rifht arm. Her attending physician testified she 
had a laceration on her forehead which he sutured, ana there were 
many giC'^.ll abrasions on her face md handsj th^tt the muscles of 
her rif:ht shoulder were strained; that she vras in pain and very 
nervous after the accident. The Jury allowed her only |175. We 
do not consider this excessive, and in fact defendants make no claim 
that it is excessive. Under these circumstances w© consider it 
would be unjust to rc?verse thit: c<' becsuse of cuch error. (See 
C. & £.1. R.R. Co. V. Knelrimf 152 111, 456; Bacon v. Eaerson- 
Brr.n tinghara Co. y Sr:13 Hl.App, 96; Vte ver v. StaggE f 264 Ill.App,556,) 

There being no reversible error the judgment of the 
circuit court is affirmed. 



IJJ3»1 ^ 

_a-<>f>.i •.;.!-> 

•u- ii^;- j'.-fsj 1 

,.♦'"■. . . J ■ .■ .,T,:. 

•' r '■y i^n'3 


^"^ f'/ f'^Tt 

Oenersl nuaber 9358. 

Amende number 5, 


FSBRJiAHY f SHM, A. D. >it^43. 


H. G, ?iIt%ADSSN, doing buBl- : 
ness f^s i'ix.C* willadsen : 
Constructloii'^, , Ji 


jp "^.^ • 



8 Jfeunlclpajf GoiT^oretlon, 


HAYSSi'j. :. 

y H. G. Willadsen, plaintiff herein, recovered a 

suwDfixy Judgment in the sum of $14,320.16 against the defen- 
dant^ the Glty of >:ast Peoria, Illinois, r sf-unlclpal Corporation, 
for worfe done in the conBtmctlon of a sewer syateoi within 
said city. 

The complfllnt alleges that the City of Eant Peoria 
undertook to build a sys tei» of genera wititiin the city. Ahen 
the work had been partially completed, the original contractor 
defaulted, nnd the city then entered Into p, new contract with 
the plaintiff herein for the completion of the pewcr system. 
After the plaintiff hsd performed •;il66,281,53 worth of work 
snd hod been paid 1152,87,"^, 32 to apply thereon, the City 
ran out of funds, and geve notice to the contrssctor to cease 
»-ork until funds would be available to the city. The contrsctr 
elected to coJicd. the contract end brought suit for the ten 
percent thst was retained by the city under the terms of the 
contract until the completion of the Aork, The defendant, 
by its answer and amendment thereto, admitted the contract; 





HIJ 2&: 



.■«0 X)iU 

;« 3i.'ijOu.,A' 

•w f'^inuj ^i-4n<. 

<J «. \,w 


sdsltted that it caused the work to stop nn Recount oi lack of 
f\and9; admitted the amount of work done, snd adoaitted the balance 
due to be correct as set up in the t^aplalnt, but denied the 
contrftctor's rl^ht to cimcel the contract ?.nd insisted that 
he should be coapelled to eoffiplet© the contract at soos© future 
date, wh«i the city would have avslleble funds. 

The plaintiff filed a motion for suraaary Judfrment 
for the euffl of $13,407.71, with intere!?t -^ind costs, and in 
support thereof filed an sffidp.vit which seta out the contract, 
the records Rnd sccounts showing the construction of the 
coiepleted svver lines, the cessation of the work by reason of 
the City's exhaustion of funds, the total am'^unt due, the 
eaounts paid, end a letter froca the City ordering the work 
to cesee for Isck of funds. The affidavit furtiier stated 
thrtt sll the facts contained in said affidavit are within 
the personal knowledge of the pleintiff, snd if he is sworn 
as a witness he c<*n testify competently thereto. Attached 
to the affidavit is a copy of the contract, itemized st«5tements 
of accounts covering the «e««r construction and copies of corres- 
pondence between the pislntiff end the City. 

To plaintiff's motion for summary Judgment, defendant 
filed a cross-affidevit which alleged that plaintiff agreed 
and undertook to fully perform said contract, and that plaintiff 
had failed and was therefore not entitled to recover. Plaintiff 
filed a motion to strike the answer and ciwss-aff idavit, and 
then defendant filed an aaendaent to the ?3n«!wer, wihich admitted 
plaintiff *a9 entitled to the Judgment In the amount claimed, 
without interest, provided th/;it the entry thereof in no wny 
amounted to ?> cancellation. 

The Court allowed th& motion for a sua.r.ary Judgment 
end gave a Judi^ent in favor of the plaintiff Pnd against the 


?»«j^(jpj? ri?5^ct'T*':r 9"fj 

a*^»iei»f ,jfti«j»3ftwC> 'i's*4?3sw« 11 ct Hoi? U^nlslq. ol 

llli^mXq 3»il^ U^'i \to%i<3a99.hi.ns.0!itifl't9q flint ?i»Jto*i J^xu 


iiefeodant in the sum of $14,320.16 end costs. 

whsre s contrsctor bids on b unit price based on the 
existing prices for l^^bor and saterlal, and throug^h no fault 
of hie the other party order? the work stopped on account of 
running nut of funds, the contr-^ctor Is not required to 
r.peculfste on ^tiat the price for Is^bor sni ssterlsl aalpht be 
at the time the «ortf n^lpht be ordered recused by the other 
party. Unrler the^e clrcuwtfinces the 1- *• fives n contractor 
the right to cancel a contr«ct and sue Bn<i recover for the 
work then completed. Pauly, et &!,, v. County of Madison, 
211^ App. 15; Dobbins, et nl., v. Hlgglns, et ^1,, 78 111, 
440; City '^f Chlcfipo v. Tllley, 103 U.S. 146; 26 Law ?:d. 371. 

Plslntlff's motion for summpry Jud^j^ment and affidavit 
In support thereof le In accord with Supreme Court mle 15, 
chapter 110, section 2&9, 111, P.^sv. ;:tats, 1341. The effldavlt 
of the defendant fsllsi t-^ show a poort defense, 'ind f-'llF to 
9how with pprtlculsrlty any facts upon >hlch the defence is 
bftsed but merely con«?l«=!t«? of a conclusion of the afflssnt, 
•thfit the plaintiff had felled to perform snld contract and 
Is therefore not entitled to recover any -rjm."' l,lkewl«;e 
the answer of the defendant fi5 axended, confes^ee the cause 
of action set up by the plaintiff In hl3 compl?\lnt but requests 
th<5t the coBtr'-^ct ahflil 1 not be cancelled. The action on the 
original coaplaint la one st lew. TY.-i defendant did not pray 
for any relief in equity In the pleadln^^s «»nd under these 
circumstances the court Is warrented in entering this Judgment, 
for there is no issue aiede on any fact or fscts by the ple»<dlnpe. 
There 1b no l8«ue of fact inade for a Jury or Court to try snd 
nothlnf for the court to do other than ent<?r judg^raent on the 
pleedinf:s as provided under rule 16, f?upro, ftalnscott v- 
Fenlkoff, 2B7 111, App. 78; Roberts v. 3siuermfin brothers, 




baa xn. 


Inc., 300^ App. 213. 

The defendant in Its brief sv^p^ests that the City will 
be eabsrreased in another pending lawsuit thrt It has with the 
origin?! contractor by the judgment entered In this c?se, for 
it will be cl'^lKed in thst ess© thst the dasaages will oe limited 
to the Judgraent entered herein, end further that the City "«ill 
not be able to complete its sewer aystein unless it asives full 
recovery fpoo the original contractor. This argument is not 
besed on the record in the pre'ient ease, and la not b. valid 
ground to deny the plalntifl of the rights the law gives him. 

The csffes cited by the defendant on the proposition 
thpt the court should not have entered the summary Judgment are 
all c&«^eB #iere the affidavit of defense properly set up fscts 
showing a good defense and are not applicable to the situation 
shown in thla record. 

Defendont contends tbst the Circuit Oourt erred In 
allowing plaintiff interest at five percent snd points out 
that there la no express provision in the contract for interest, 
but it appears from the pleadings herein thst there was due 
the plaintiff the sub of $13,407,71 ^ t the time the City 
ordered the work stopped. The City ad-Bitted this by its 
amended answer. Section 2, chapter 74 of tiie Interest Act 
provides, ••credltoro shall be allowed to receive at the rate 
of five (5) per centun per annum • • ♦ on money due on the 
settlement of account from the d»-y of liquids tin? accounts 
between the perties snfl fsncerteinlng the bslffnce,* The g-eneral 
rule as to the llabllHy of asunicipalltiesi is \3tifit they are 
not liable on contracts for Interest, in the flta<jence of B^n 
express contract to pay it, yet ''•here it in unlawfully and 
wrongfully withheld a rouniclpnllty ie llfble for Interest to 
the 8»,me extent ae a prlv? te person, Conwey v. City of Chicago, 


.in I 

Xiw't Rasfcafi ;?! •a«Xfit; .?-.•?, tswas zil jNf siiqac;,. v./ old* »d ton 

■■" -'.rf^ at nol* ■'»< 

. _ • . , ,^ Y «» -' fJ -T-- 

rh 1 ^ f 

V f'^^jS" 

rir.J lis 

'O L *»J. 

'ITis flc'nLm: 


837 111. 128; Gook v. City of St&unton, g96^App, 111. 

*• are of the opinion thst the Circuit Court properly 
entered the suajasry judgasent includir^ interest and therefore 
the Judgment of the Circuit Oourt of Tazewell County is effirmed. 



X ^q:x^ K<^^S ^^fy^rufS" Ir- y,»10 .V *>oO iBSl .III ^52 



ILLINOIS, a eorporsHpn, 


eorporstion, ^ 





^ Thl« It a t)«r8onal Injurjr action. The Terdlcte found 
th« Pttblie ^•nrioa Coorpany guilty, aasttaslng danages at $8*£00*00 
and Bears, ^ebuok and Coapany not guilty. 1%a Servlea Coflipany*6 
notions for a dlraetad Tardlot at the eloaa of tha plaintiff 'e 
ease and for Judgaent notwithstanding the Terdiot were denied, snd 
Judgment was entered on the Terdiot* 

The Senriee CoBpany has apoealed and contends that its 
■otions should have been granted; that the rerdiet is against 
the manifest weight of the evidence; th^t the daaages are excessive 
and that the court ruled erroneously on certain evldenee and 

On January 27, 1937, at about 1:30 P. M,, Employee Rowen 
of 3ears, Fioebuok and Ocimpany» accompanied by a customer, pulled 
a light switch to lllvainate ti^ service room at the rear of Sears* 
store and building. Ideated on the south side of Illinois street 
in Chieage Heights, Illineit. A bluieh flame immediately appeared 
about the socket of the ll^t, filled the room, and an explosion 
followed, whiah blew the eervloe room doors off, separated walls 
from the roof, greatly damaged the rear inslds of the building and 
broke plate glass windows in both floors at the front. Plaintiff, 


jrx® s^- ' 

»*OIRI«tO a»T C . 

00,(X^,8^ #3 «*i^fe«ai' iwl8a»»s© ^xttief^ Vi-sif\mt>0 t9lri9<^ ^ildtr^ 9t 
«*ta«Q*W5'-' «sXvTfi*-.- sat ,'^;?i:i»g Jon xft-^^^f- ■ '-909 JbuM 

%*^tISsilis.lq 0A3 lo ssoXe ecfj^ #s «tolM9T &»^otntlJ^ e tot •Aoi^oB 

?«« &9n&ttr0 niB3"n«o no X-f»*'0'^*»<W'^ fetlifi 3iuo9 9xLS Sn'.i bum 

*BtA»1i: to tst^i 9il? 7« Bco^ s'^imtai KiS •Umlmultt i siotiyn Sit^ll a 

99^tia alontfll lo 9f>tB Ait;iM titt ji« haim^QX «;ii>jt&jljicjf baa •no}* 

ftvia«^q£ Xl9f*l&9mal. 00t«n d«iii£tf A ^aioalXlt .a^d^isK oi«»idO ai 

nQisoIqx» a« J&«t($ 4^001 •!!» IftU^ ^i^U •tU t: ^djdoea 9AS ttfdM 

tXI^v B»#»niiMi«3 «t)9 aiooft aecrt amines •itl v«Id tloIdM ,i&9«eIXet 

fcrta ^nliiXXiKf •«T? lo •5i«fll iw<w •dJ *»9«fl«i!> xXleet;^ ,loon »ilt iMrtt 

,'TlWnXiiX*5 .Jfrcit •il9 fa ^tcoXl rf^otf «i •wofinlw •••XJg o^aXq ajfontf 


h»T haad en t3a@ door at the front of 30,^P8» Store w&a about to 
entei* and a^m a pirohas® iKiien the «£pioslo» oeoui^td aiKl itli« 
w&% throvB several f^t upon ths »ia©wal.k. •'ia® laMed on her fas© 
and h«ad ^t^^ isMl© lying tl»r«« was stxitol^ lay an u^holatertd 
ehais* tbrowa fpow the display trlMoisr nxi^^ m she rose to lisr lymds 
tad kases, was s^ioi99r»d l^ plat« glass fra^^^nts fT<m th® broken 
vintomi* aiu» T^as hjslpM to l»r fset an^ Into a n&ar^y ^toz% tdiex^ 
1^ sat for a few inlmxtes sad, sv^enly i^calling that she imst 
iwy tesy 8»s bill that day la oilier to gain the discount, hxirrled 
•iMis to tkiB Public Service office Vm blo^s wqbX of, md on 
t)i» ssae side of Illinois street as, 3««r«» Store. She paid th@ 
blll| waUcsd east to the first stJ^et «©st of S^srs* Store, ^®j*e 
-she crossed to the other aid© of the street throu^ hea^y traffic, 
resmwd her Journey east to the first street east of sears store 
hImw she re«eros3ed the atreet throu^ heafy traffic and reeuQRed 
htof eastward course to the next block ^^ler^ he son awaited her 
in an auttanoblle* She entered the automobile hereelf , ^as driven 
to her hone where she entered alone and a 9r« Hay was called tind 
disooTered nu^rous little scalp cute, some fsse abrasions, a 
auBber of buops on the rl#it aide of her head, on^i l-^rge busip, 
si0fts of concussion, her rl^^it hip swollen and the skin remoTed 
iftMrre the ofaair had struck her; foimd a tenderness In the saoro* 
lunbar region of the Hght side and the patient re^r nervous* lie 
atteaded her dally for 9 days ami then treate<l. her off im& on until 

From the tlrae of her injury In January until .lAigust ©, 
192^7, plaintiff newer left her hoae aloiM md, while t aken occasion- 
ally for a ride, was always aocoapunled. She and her husband 
eonteeted a bearding house. In wMch plaintiff before her accident 
did the houseworlL f^& managing. Follow^Jig the accident she no loaser 
was able to do the worlc and enQ;>loyed a <70Ban for that purpose* 


M»l«Jnr((3.£&|tf rf;:: "iu ?>„ - ^ ,• > .,.r>;t4fcr ^M^IKX tXi^v ^^>€i£ I^j&oA biU 

■3 mn^ ni^ii'ocf^ri'ti GSi*-!^ atjeXl T*^' fertlwor!» b«w ,«o«it3! too 

ta«s oHe $n^ ^uXJLsi&in '^ino-uxa/a ,£«« ute^iautRt w»t j!^ *tot shjt Mb 

t&it*tBd «;fni/o9eiij ^i& aIbb o^ *s&&r& ni ts^ >«i^ JtXld tji® tmi xa4 

no J&m «1:o S^mt t^lpoXcf o^ «4x£110 e9lv^«fi dliairi asl^ 0^ •»!» 

©it^ l>j. * 'o IXXI lo aMi wsaa tdJ 

tnd Ssiflrv ,f ' ::{s>oIil 5hs#n srW «* fftotuoo l)rx0V<fMfi> 'i«rf 

Sn=- ^slXjfo Bi?r^ X'^i^' •'*tl 4} J&n^ miQlF. bv%9^m ©tia otoiiv ©woii •soil oi 

9ii •eufo?*x@n x<tt»T ;rn9i^3q ^^i'^w l^m- 9l>lft (f^^iri; Aflir to noij^vv "XsCbflVl 
riiJ'ttw «o JsflB tto ^sri f;otfBe*!t* «s :> ii«l J6eJ&n 

»noXt.^«ieo atiJi»$ aXlriy ^lict- •it ' iid JloX t<»v»n ' t 

tftBfloX on oil& inofxtao . *»cnr«r 


On August 9, 1937, plaintiff left her home alon« and v&lk«d 
a«Teral blocks to the business district of Chicago Helots, ana i#h®n 
about to enter a etore, slowly tank to her knees, lost consciousness 
and vas taken to a hospital wHere Dr. Slim attended her and found 
her uneonsoious, suffsrlng from a stroke with paralysis beginning 
te appear. 3he reaained in the hospital a few days and was then 
brought ho«e and confined to hsr bsd for ten or twelve days. In 
December 1937, Dr. Hay again saw her and she was still suffering 
from slight paralysis of the right am and leg, and at the time of 
the trial her right ar« was greatly diainished in function ana 
strength and a dragging gait of the right leg, which followed the 
accident, had inproTed to a liap* 

The defendant first contends that the trial court erred 
in not sustaining its motion for a directed Terdlct and for Judg- 
ment notwithstanding the verdict, claiming that there is no evidence 
tending to support the specific allegations of the complaint* Plain- 
tiff alleges that the defendant had the duty of maintaining its 
systsm so that gas would not esoape and endanger human life and 
that it did not observe its duty, but negligently permitted its gas 
main at the rear of Sears' Store to become defective, as a result of 
which the illuminating b»» •scaped, seeped into Sears* building 
causing the explosion which resulted in plaintiff's injury. 

Sears* Store was built in the summer and fall of 1936, 
and consilts of a two story building and basement, rebuilt, from a 
building then on the premises, by new construction of the store front 
and of a rear addition B« feet In depth. Inside, the store proper 
extends south from the front to a small stairway near the rear which 
leads upward and onto the service room where tires are mounted and 
batteries teeted and installed as a convenience to customers, me 
aefsndant's gas main is located 3 feet below the surface and Just 
north of ceaier of the east and west alley paralleling Illinois 
street at the rear of the store. The alley 16 feet wide is brick 


ftftjffaw bRM »fT©Xs sfBCJl tstl tint ttt9Bls.Zq ,1*e©i ,1^ fursi^ ttO 

iff •«X»& ftirxvvir «io a«# tct b^ 7»d 0# &*ffitff«» &a« '•votf M^Mnctf 

3fi!t*SJ7tti;8 XXl;f9 «&v »ite A«.« tait wa« flXj»|i« T«8l ,n<I ,T8W it<l»»d«C 

t;f dil^ ts 0ns ,s«-t ^^ C^A tUgiv vH^ to B/STXiitdq tif^lX* tto*i^ 

n «oit®ni?1: ai M(l«lflX«X6 tXitA^Y^ asv viji ;frfTsi'J '3r<»'I t*t^^ ^dt 

®ii^ t>«woIX^ iSsJUfv' ,;§«X ?^gli ftjffj to tl«» ; a9^f 

,^»:\' 'i-pvo^qiBl 'featJ \tn0lbtoBM 

&9nie ;Kfee» Xi^l*?? »ir^ ;*«ftt 8fei»»7fio« ;f9«tXl ffls&frslftfe ^^ 
•#>»i tot fifla t©iM9T &»*©«!* « •fct ftdl^«9r ttl yjifli .n nl 

«.i.i '^ .tnl*ilt»eo 9>Ai i6 8ffol3fag«XrA dl'i!l«»qB «Ji^ tno<!r<S»i ot snX&a»J 

hn» ^*tlT a^mttd «r&^a.&it<^ btm «c|«et« ton I^Xtfmr 'sjbs t«iil oc'M^bx* 

itncnl 9nejr« cui to ooX^tMncs^afioA w»« ^^ ,«o«l«»nq •tit no a«jld^ ^iriftX/:. ^ 

ll9X.1V «Cri^'» 9^«r <t««ir XA'tf^XAt* Xi««l! A Ol tflOYl 9X1^ MO^t if:fi/«« s^se^i 

bOM. b^taisom in» ^^nis ntttn wmen osIvnAi »fi^ oSno bnm M«vq» vbc^i 

i^dT «itidffioii3i/ci o? 9«fAtXfi<»7itoo A %a i)%Xl»tVittl ham betin^i nnin»ttmi 

^rictilXXX jiiiiXoXXfifaf;! x«rx« {Tsw hna t*»9 9iii lo n«ia»o to d^«i 
i&iicT e£ «Jblw S99\ dX x^'^^A •^^ «»no}a •Ai to vjirr •£it 1« tmvtin 


psvte^ upon s 2 Inch Hand <m^lcm lasting on abotit 3 or 4 inches of 
eotwrotfif set on 13 feet of eXay* fhn mntim^Mt BinS. fwst ^slls of 
th© btaidiag str« briok, restli^ on a coner©t® wasii 14 Inc^s tiilck, 
e£t«ndlag around the bstsisment. This wk11» vesting om footings g to 
9| f««t wide ^tnd in inehea 4««^. ukm about 14 feet deep at ths real* 
of th© building r^nd, Su« to a aoiawrsjfi slop©, ro»« above tli® siirfae© 
of the alley 3 inehee at tis^ east side and @ ox* 9 inoliee at the iwet* 
There vae about 4 feet of Seare^ proport^ between Its building line 
and the alley line ^hieh waijjpaved with a coiwrete api*on whioh 
extended fslso severel feet into the alley, replacing alley bricks 
adPter a cave«ln, hereinafter referred to. Between the foundation 
"^^ll^and the gai aain, the soil wae clay« Se^nxv* baeement floor 
was conerete 4 inches thXCk. and the floor of tlse service station 
concrete 6 inches thiclc, resting on the foundation wall* In the 
baseiaent under the Service Rooa was a eoal room fed frora a coal 
chute 9 the top of which was losated in and level witii the concrete 
^pron. Defendant's eain. Installed in 1988« was a 2 inch lesi^sed 
pipe carrying illuEiinating |^ at a pressure of 10 to 13 po^3Ms per 
•^ptare inch and froa which a service pipe extended throu|^ the founds** 
tion« into ^ears* Ixiilding 36 feet west of the Sears* east wall* M 
illuralnatlns ffas was used in Sears atore, and the service pipe was 
plttg@sd inside. There is evidence that during the construction of 
the building in the preceding supnsier, a cave-in occurreft directly at 
the r9fT of Se&rs* building, outside its service roon doors; r:tLso 
that the fliei*vlce Gi^any ex0«ivated at the rear of the building 
in order to lay the service pipe; that about th© safls tiaw a 
break occurred in the Service Cofi^>fmy*s eyatem further west in 
the aHey; that gas bubbles were seen prior to ths exploc^ion 
directly in the rear of the building, five minutes before. 

:jra-'sx;a »ri*r »vo»i<» ts-sc-'i:. ,«'.ioI« Mjiivvs^<^^ » o* »*^ ^i-ii.- '^■:"'' """'' 

jij «itifi» ajssi «xll Isrif nll^ 

■■■Ut^siiiQO m^' ' ' V . - -. 

Oil .IXr 


«e\rsral tin©* sevsrid da;rs l}@f©j»©, imd several si&ntJis r*#for®; W.b.% 
th« isabbieg eaiiatrt app^sJhsdi followlrig Pain ©r wet iwathiSF, nm paMXisiBin 
depressions in thM alley direetly in th& r^&t of tfes buil^ingi 
that the or&or of th® tmi>ble8 was illiiminating ^«j tlmt lllufsln- 
ating gas ^a-SffiaeXlea In th® i^sr of the stof^ pis?p0S» ^i%S In th« 
serrLos rooa prior to tfae ©Jtplosion; tliat prsedding the «3^l9sioii 
tlier« wa« a fl^»Mi ©f the 0«imness of bieniing illK^iinating gus, a 
hluloh^red color; that tb» tarns ^ini of flsamn was observe lat@r 
in the ociling of th© r^ar ba8©m<5nt, ^long th® edges of the r0aa» 
tending lin«9 a^out the manhDle eovdr^ ^n& along pi|»efi up and 
down the rear w&ll of the Imllding; that firemen could not ex- 
tinguish the fliiftee with wnter; l^t th@ allaf was not disturbed 
Iqr the exj^losion; that dsfendaatit^s msplGf^on following t^ ejs^^lo- 
slcn, oheerving teoMes in the depression idMire they existed hMiafT®^, 
ordered th^; i^s shut off; thst when the gas was shut off^ ?slX 
flaaes suddenly stopped! that defendant's employees the' (siQion 
exoavated rtnd found a break in the main at tiie point of tl^ alley 
deprf^saioa and that they eotild not say idhether the ^reak i^is an 
hour or a year old. fe beliere theae facts m& proper iAfei^nees 
thex«fr<ai amply tended to i rove thet gas eseja)ed from a l^reak in 
defendant's Bain and seeped into the dears* bulMing ^nd that 

defendant with reasonable inspection - under thf? clrciMstanoes 

surrounding the slley cave-la, eaorsvating njad repairing the main - 

would hare had notice of tlie eseaplng gas* Aooordlngly, w& helieve 
the trial court properly denied defendant's motions* We ivs&& not 
vonsider the oases elted on tiie i>oint for it is a^arent the evtdenee 
tends to prove the specific ne^^ligenee charged* 

The iMxt question coneems the manifest weight of t^ 
evidence* The aefen lant relies aalnly upon weaJanesses in plain- 
tiff's ease i^tl^r thim e«t «if^ defimse testii^ny* It says there 
is no evidence exF>lalning ho^ the gas escaping frcm the main could 
possit>ly have entered the buildlns in thr; face of th© f^^cts of 

tntti ; ©Tto' 



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XJii^ Xff<f«V^ MBit JtMMtB 

!0 sssfiMttS «i& to 4«irt af!v 9feitf 
»«M oXoo Jk9Y-at«JUrX<f 

^ti' ^inToo ©Xc i ;tmKfi> ,»AiX sAli^XiMf 

;^:fi>^il ».«»*fcf 5?!jii-£i5'-flt«sr ori? to XXa* fis©*f «rf^ wr<»J& 

«oX^* oii# sniwoXXrt •««« t #i aA? t^ 

•;■ ■ . 'rt»Atm-> ■ '• £iso9 t»ds SasdiS fciiRf iiouUt'rtqsfc 

««OR®*£clA.- i^fit «»«£!:? «ir«lf»t ■ ,:..;.■/ tuod 

QtaaztomnytlQ djtr lof^itv • nolifasq&nl fU^anotamtn xt7Xtr ^iirNfl»l«Jb 
AX&od fiJUs «tiS csrtt Bittqjr.Me sas ^dt wod 8filJtiiiX<is* •omJttve oa «i 

Iwlldlng eenatjpuetlon h©5?*lal}«fore ;?«tlln©d, There is eirldenes 
of Isek of adhei^nce of ^© m^twXq^ ipoom floor to Uie f^wsAatlon 
WBllg Of a rsnt from tlie cosl rctcaa to the ssFrtee Toom; ©f poss- 
ible porosity In eoneret© DnJ.lsj -md, of coiirse, the aeTTlc« 
room doors opening Into tiie alley # dlreetly outslsae of wMefe 
was the depression In "sphioh Is^ibbles ««r€ se^fn, fhere I3 dlrset 
erldenee of tm preeenc*^ of lllmslnatlnc; gaat In 3«ars» bas^aent 
aiUl eervlee roo* and tlie physloml faets surroyMtng tfe© easidoslon, 
leave little , If any« rooa for doubt that defendant's gaa vas la 
tlw building and that the posalbllity of B.ny sewer ©as Jmvlng 
eontrllTuted to the exploalon too r&mote for oonsiderfttion. 
Defendant teye that It is ag&inst ooomon sense ^ind reason that 
9s«« having eseaped frost the main and relieved of the pveBsm^ 
thert^ln* could have penetrated tim 14 inch fotmdatlon «rall. 
It seed not have penetrated the wall to enter the building -md 
we can not find It could not have entered the servlee rooa doors, 
closed or open* ©efenA-nt cites eases which hold thj9t an infer- 
ence of negligence, based on another inference ndll not s^pr^ort 
• elaia of ne^lgimMi and It contends also that the doctrine of 
res ifjso loQultur does not apj>ly. Uto agree that the doctrine 
of res Ipso lOQUltur d ooB not ap; ly ^nd th&l the aoeldent Itself 
was insufficient ^thout >iroof of negligeaee to aake defendant 

liable, uaiissj^' ffgMHi ;ii^f iii.fva>tfd ^. n. g^., 2^ m. 

M^p, 4S2, The rule of infer«jnce upon inf erenoe, honever. Is 
not applloable here* Tli^re is direct evidence that Illuminating 
gas Claused the explosion 3,n& there is direct evidence of gas e soap- 
ing froa def«nd-jit*s laaln on sevex^l oecasions pricr to the accident. 
The iafereiu:^?^^ drawn is that of negligence on the part of the defend- 
ant In failing to detect and correot the leaky which Inference 
the Jwr7 was Justified in drawing. The rule doe® not mean ti^t 
•nly one presiasptlon may be lndulg(^o in the proof. It mn^ans that 
one presuaptlon or inference raay not a^ based u}>on another. 
There are facts fron which the jury laay Justifiably Infer that 

TEl#»fnll> tXQlJU ^iit o*fli j|«lii#fl[« ««9oA Boot 
isi s»^ BJ»l;ti',iiijarIiJk to ^«at«9^ «^ %• MBvAiT* 

mftntfU fts tft^;l Idiad ^^Jtti^ ad«i>to to? to ;ttta^flE»'le<l .fidio «r9 Att««i» 

^o ^ 9^ ifi^' qi9,Im a^tfie^noA iTl fiifi« »oiiig|tlSr*ftHlo «I«X* ji 

. rfN, , .,. - iiiTifi ifiW iifthwi •^uniltfi «»icfi»ju 

ia>an:9<i;&tf)i d^b^ «X^0l Oil.? {ro»ir>t(i« JMr (h»«N)li otf afiilXJt«\ ill tfMt 

;r<*4;f tmmf ton eoob aire ^ifT «3iiii«ftn:& /U li«^ti^ittit bbw fwt 9di 

9r^;f innaii 41 «)oomqi fHiS aM AnsXatel Arf fptf »uitttHiPl>Ki «M TXft« 

the llli^inatlf^ gHi wSAeh caused %im $^xT©fiiQi} cjusct ft^m defend- 
ant's mniM rmd tJowJi^ ape ti^©p«iident faets fre®. wliloh th© pp©fiR»ap- 
%%mk 9Slb Justified that tk© defanjlant «^ys R©glig®ut la not hsTlng 
detected and reported the les^ pTtor to tlie aseld^nt. These 
pf^mm^tXonB may tM^th be ^^^hb, Me l^eliere tha e^ldene® teMed 
to shorn the iieeess£X*gr el^ients ©f defenfent'e negligence and that 
the allegations in plaintiff's coB^laint were suffleiant tipon 
which to intxwluco t>i,e pwoof . Befe^ant j^eltee Iteckford ^j§l^ . 
^.^t & QokQ Co. T, i^st, 68 111. A|>j>. 300 la support of its 
contention that the unlfora mile is thmt plaintiff was jH^quirsd 
to proTe that the clafendant by QXQTQlae of ordinary car^ ^aoald 
hare diseoTered the lealc* fhat ease vupi orts our viev that th© 
Jury 9ae Justified in finding that the break in tlie pipe ejdsted 
for a sufficient length of tine; that defcniant under th*^ ciretJia- 
etaneefl shewilA ha^e discovered it nnd, not having done so^ was 
negligent* INfendant further caye there is no eridenoc' at ^1 
that it had any sore reason to suspeet a break in its aain nt 
that pointy than any other bre«Jt in the a|>|}roadUaately 300 square 
Biles of territory it serves* fe dlsai^e* The ©Tidenc*^ of 
tSagt building exoeration and construction* dijgging Iqr def endant, t> ■' 
caTe«in, subsequent depression and bubbles indicate the oontz^ry* 
It contends there was no showing iliy it should break up psveiasnt 
or brioX alleys to (letsrsine fitiether there was a breiik 1m its main* 
It would «n»tar that observation of the depression t^lding water 
above ths aain would have Immi sufficient* It further contends 
that ui»ii8|>uted evidr?ntts shows th^.t thery was no w^y in which defend- 
ant's sss o<mld enter the building befoi^ the explosion Jtaj^pened* 
This is founded on a t^teory that the estplosion caused the break 
in ti}B aain* The pre senoe of illiaasinatlng ®as In Sears* iltore 
ptrior to the explosion^ with the svldenee of preeedliig bubbles 
and the subsequent fact tliat the alley ^as not damaged by the 
eagjlosion, demerit this theory* People's CraS hifSxt ik Coke Co. 

i'Vi «cli 2toi ' L: .^i; ii%^9«^ #;iir4!^«MlQslHSi %tM w^ btB^ mhm %*tnM 
^f!i nX ^ ^1 R^^ i-mtitsi^l^'B esdsr ta^ iml\ii%a\^ Iunp iMklf 

i ^si9jji79 sut/ wif9.ii9^ ev ,fti?«t;i^ «tf itjraif ties 9mtAt^gKm9H% 

@tX^ <^^ Ml Jla^tiEf «i^ ,fj!^4^ ^(jELtiXt *ii ii>»MttS9Sfi sjnr TWt 
-■..•-•■?-■ -■^uU rt^&iwr .' -i* to x^^s«»X ln<»Xdl\lJsni » ^i»l 

*miMm "Bnl^lofi ixoX&««nK|«ft tills to A<»iitftrs«>««ro tclfir "CMMpift i^Xirov tX 

-.'^otaA /ioMw nX x»w «a iiisw $t<td^ ^init woite ■■ mi v A»tMptt«r tfwH 

^ 'ic! adiif j^itAfSO «oi8oXiiic» Mt $a^ VtMiii & n* A«AisMt •! sXtif 

J gAX£«9G^ to &3if{»i>iT8 «i^ turiw ^itoitaLX<i3c» tdr 09 itoi^q 

V ^^>«s«"a»3i> ion ftsvr %oXi« inftr v'«fi^ taut tm tmp t wOm «ic^ Aa* 
Jr^U n^i? .<i *(iXqip V HMii» tidit tX^nnti^ ^i^idoXifto 

▼• ^fflr^Ti**^°^- 1 -^3 111. Api), 1§4, eittd lagr d^fei^ant on tJi» ^&«stioii 
of mantfaat freight of ©YtieaeSj is not applicable, ??« do not 
consider the repdict agjiinst tlie manl:f@st ^^elg^t of the ^ridence 
a»& would not, thei^cfos:^, be justified in setting it ftaide, 

iSf« ar® urgttd to ijold that the dimages su^ ©j^oessiTO, 
defendi^nt arguing that th© jiascideat of Aaguat 9th, ?n<l the In- 
Jtiides suffered then and thereafter, w^r?; not proircd t® b« the 
result of xh» prior stccident In Januai^j that sny allowrme©, 
tht»rffore, was not proper; ?iid that |0,SCiO«oo for th® prior 
damages was gro'^sly excessive. If def :ndant*8 premise is sound, 
«e agree, for If the condition of ^iralysis, ^lieh was the 
principal injury and suffering of plaintiff, is not attributahle 
to ttie sccident in Januazr, then the daaages as assessed are 
•j^essiTS for the Injux^r then suffered. The question, therefor®. 
Is vhsthsr there vas a causal connection betureen th^ Januax^ acci- 
ftsnt and the injiuries of August 9th snA thereafter. 

Defendant points out that only ons doctor testified 
that there vas such a connection and that he ^as ine;£|}erienc@d, 
fare an asbiguous opinion based on an iagproper hypothetical qiies- 
tion, «hlle defendant's ssdlcal witnesses ir@re Vwo experienced 
brain iQ>eeialists who gave definite opinions that there wss no 
such connection , glrlng facts ind reasoning in support of their 
opinions. Since there was testiaiony of a connection between 
the January accident imd. the later lnj\u*ie8 suffered by plain- 
tiff, the question of that connection was properly jub®itt<9d 
to the Jury sad we should not sustain defendfsAt In its contention 
tBiless the evidenise en the point is manifestly against any finding 
on that elesisnt. The qu'^lifioatlons of tho doctors, their opinions 
and reasons are sll astters for the jury. It heard the opposite 
Tlews of the doctors and while it raiglit see® from t^ e widened that 
the positive testisnony of defendant's medical witnesses riittmld 
hare been acre conrinclng^ we cannot substitute our view for the 


•^ ,??f'^TX."T3«t ^o - G.i? Kl tot , r? 

^'■''':-. fe»aa«8fti& ....... ,^^ 

,M«>«®lTf€M....- .- ...... J.- _ ....J . .. \i 

at'.i-^ trttr 

« J s»it:,i.i» 

jury»s. In addition to plalntlfl'** 9xs>®rt u-ltneases, thi® o%her 

■edieal tsstlaony in h»p belsalf iKas ^finite that hmf paralytic 

corolitl n wa« awe to an Injiiry to tbe ^ain. fh«ii»« axv dlasetrlc- 

allj opp©aed e^>crt opljolcas^, ^;?ith/fe«dleal tegtiiaony from ^icli 

Inferences helpful to plaintiff's oa»e eouia easllj '»« arauR, 
and we cannot «ay the July's findings on tills point are a^^alnst 
the elear ireli^t of the efTidanoe. 

Defendant oca^laine of ins tract ion iio. 2, gl^sen on behglf 
of plslntlff and of instnjctlon l?o. 10, given at the reeueat of 
its eo-defeadant Be&rm Hoebuck A Company. lie beliere that plain- 
tiff •• instriiction No. 2 is insH&equate in that it f-alia to state 
thftt injuriee oca^nsated for ehouia be liiaited to tl^iose resulting 
from defendant's negligence* We believe, however, that the 
Service Coop-jny's instructions 21, 24, 32, 33 <md 3i, »ore thsm 
supply Qjfiy deficiency in that Instruction* It is urged that 
instruction ;^o, 10 of 3«ar«, Roebook A Company aseunes a contro- 

" verted fact th?»t the 3ervice Corapojiy created a dsaigevou* end juacer- 

^ftaSJ^ eonditioa in the store* Kle think thl f instruction is 
general enougli, especially when ooosldered vll^ defendant *0 
inBtructione Moe* IS and •SO* 

" \ Defend<uit el^ime the hypotJietloal question pvepounrled 

/ %c plaintiff's expert is ii^roper because it tniled to Include 

1 1 fl«bstanti)rCL material facts and the further related contention 
! that the expert's ansirer "ooiild have been due to ths accident** 

J was too indefinite for understanding* It sppistn that the 
ipiestlon under discuBSion did not include all the saterial fsicts* 
At the conclusion of the hyiK>thetioal question prepcunbied by 
plaintiff's counsel to plaintiff's isedleal expert, defendant's 
counsel Bade an objection in wMoh he recited facts uncontro-* 
verted in evidence -ind which he cli^ioed were ejccluded from the 
question* This objection occupies nearly 8 pages in the type- 
written trsAsoript of evid' nce^ at the end of i^liioh counael for 

i,?<l %9d taM9 ,»m tSMi^94 tKiA at i«oa; « 

dalfiss aott ip V, «aftoliilqo ^r?o<pLa Maoqqo flXa 

tisfiocf «p «0fi?» ,A .oil fioiJom;rs»i lo «2 

to tttnnfpm. ati^ 'to 

•fli.*5jf<i *Aiii iiY^ix6f-- ■ . Bts.&a,. ■• - '-a 111 

--cntm-Q Si stM»fs«.r 1» OX •o^ aoltotntrntti 

»*^xifi»iiett9Js ^t**cT«* Xr^Di^M! ■•Itjtfn; I»«iuf03 e*ttJttfAXiBlq 

tot Xd^inuoo ifdiiiw to fin® e ^ a£t'^ibiV9 to tqi*tOftiuit# iu»^9iinr 



S«ea»s, Boebuck & CoEip-iny objected to %lm hy|Jotii@ti©?5l question, 
adopted tlie ofejeetiona r«elt«d ©y defendant's counsel, snd reclt;©d 
further clalxasd ^ai^tM fsots wMefe toolc up aliaost pag«» of th@ 
transerlpt, following wliich tJ&er« was a colloquy b«tw#@n th® witness, 
oourt and counsel, after whioh tim witness answ»f«d ^s iBdic^ted. 
Plaintiff* 8 @3Q>ert was ei^ss-dxajslnod and tins faota excluded froa 
plaintiff's question ««re included in the h^poti^tioal Questions 
pat to the eiedieal witnesses for the defendant. t/nder these 
oircuBstanoes, snd ^vln|; the ej^^rt witnesses* testlcioi^ its due 
Talue, «e cannot say that any prej\»iice has been shovn to th© 
defend^mt iby the question or ansimp which would Justliy setting 
aside the Jttr7*s verdict in this ostse. 

i^^m&m AFFXBMED« 



.1: M^?i.»c ■ : 

■ ns^t tiyU ii£m MMJJt«j?x»-ee«rid tkf^^ #t««|K« »*'^ 

- .^ ■ J. 




ILLIK0I3, a corporation, 








V* haT« reconsidered the above entitled cause and 
haTe decided to adhere to our former decision as set forth in the 
opinion filed by this court on Wednesday, December 9, 1942* 

For the reasons set forth in our former, opinion, the 
Judgment of the Superior Court is hereby afflnned, 



,}£2MXIf>lMoM HT^aASIJS 




;0 SBiX to fflOIl§I«IO 

•A 10 XHA'5/400 aiDI\' 



« ,YMA^oo QVLk xoueaoa ^shais 

,Si>eX |t? if<liTso»0 ,^&|«»flJb9W no l<ix;oo aJLcl^ x^* J^»X11 noinlqo 


^UDMOO .t ,J3a3H CKA .t ,1 .aXOTS 



%J Plaintiff) Appellee, 


31^'I.A. 65q 

On Appeal. 'df JOSEJ^. STEWART, ) 
( Def^jeffSant ) Aooellant, 

The plaintiff in this action, Bemice Paul, aa aeei^ 
r/ of John Latoza, filed a bill in chancery to foreclose a claim 
for mechanic's lien in the sum of #5,299, 13 on property at 

2944-46 Lexington ^treet, Chicago, Illinois, 

The defendant herein, as the record owner of the title | 
to the premises, answered the comt)laint, alleging that he held the ''^ 
title for Jadviga Latoza the wife of John Latoza, The cause was S^ 
referred to a master In chancery who heard the evidence and the "^ 
suggestions which were offered in support of the complaint and ';^ 
amended answer that was filed. The master disallowed certain ^ 
parts of the claim for the reason that John Latoza was the husband 
of JadTiga Latoza and under the Illinois Hus ban d and Wife Act 
(194/ Illlitets- Rev, Stat,, Jlih^ 68, ?ar, sj) could not claim 
compensation against her for services rendered to her property. 
The master allowed a mechanic's lien claim In the reduced amount 
•f $1,496»22 plus interest and costs against the defendant. The 
#1,496*22 allowed was not for materials or sei^ices furnished by 
John Latoza but was for milneys he claimed to have paid to other 
contractors, which moneys were claimed to have been originally 
loaned by the plaintiff to John Latoza. Both olaintiff and 
defendant filed objections to the master's report, which were 
overruled by the master. Said objections were ordered to stand fJ^ ' 

•^ sjf *i^*X ^ 1. O 


rjoo 20^0 

S^ft lutfriaocrKl no CX *6e2,S# to eiua wtJ ei /rsXX e * oin*»ii09« tol 

srivt frXeri ed ;tsri* ^^nlgeXXs j;ffil.BXciBOO »iiJ Boieweos ,aeaiffi9iq 8x1* ot 
QMf eewBO 9xlT ^ssotsd adoX, to 9\lv sAi ssoJaJ R^lvb&X, tcl 9liU 

iixiB ^-nljsXQffloo 8ri;f to d-ic nua ni Bs^slto snsw rioiriw enolJaoasoa 

niisiJiso £)9woXXsaX£i le^faBiB 9riT ^bsXXt sbv :rerid- lewana fiaJbaena 

bfiscfauxi BfiJ 8«w BSoJaJ firicL {fjMUT noese'i oil;t lol mleXo adJ lo a^iaq 

.;oA eliw £>flLfi fim^cfauH aionlXXI axlit i©i!>m/ Bna aso^aJ ssZTfjaX. lo 

mluXo cfcii 6XU00 <(a ,i&% ,88 I^^ «*;tfi;fa .veH -a^oirfXXI bj^ex) 

fc^tfiaqona leri oif biiiebtt9*t sftolvrtos lol: isrl d'aniasA aott&Baecmeo 

Jnuoma fcsoubsi sria^ nl mXaXo n&iJ s^olnBtio&m » JbtwoXXa rte^aAfli ©ilT 

ariT ,:tn«£in9l9JE) 9xl;t Janissa aJaoo baa ;faei&Jni ax/Xq SS.8C1^|X<^- to 

Xcf bariairrtwl aaaXvnsa lo aXsiie^ain Tct ;ton aav fiewoXX© 2S,ae^,X| 

Tsxl^o oi bl&q bvbA oJ bBmlmlo ari e^snfiin to! aaw ;ti/d asoJisJ niiot 

iXXsnXjjXfo netd evsd o;t iJ»©ffll.aJo anew a^^axiosi lioixiw ^fito^ofii^fnoo 

fina tlit^nlBlo dioS ,sao;r»J[ nrtoX» o;r itlialRla 9Xii xd AsnaoX 

-"v?- .. j&p«J3 oi fistsfiio eiaw 8noX*o©t«'o J&lj»e ♦isJaaa ail* xd fisXwiiavo 

as exceptions to the master* s report by the chancellor, who 
overruled Bsld exceptions and on motion of the plaintiff a decree 
was entered in accordance with the report of the master. The 
appeal by defendant Stewart is from that portion of the decree 
allowing a mechanic's lien for |1, 496,22 plus interest and assessing 
costs against him,. 

The plaintiff* s complaint alleged that Charles Shukes 
and Polly Shultes, his vrife, owned the premises at 2944^-46 
Lexington ^treet, Chicago; that defendant had some interest therein; 
that John Latoza had entered into an oral contract with the 
Shukes or their agent, to *«iodel and improve the orooertyj that 
John Latoza thereafter furnished materials and perforroSd labor on 
the premises under said contrao|f and completed same on August 27, 
1938« On October 10, 1938, Latoza filed a mechanic's lien claim 
for $6,082,52 therefor, and on December 5, 1938 assigned said 
claim to olaintiff. 

Defendant's amended answer denied that the Shukes were 
owners of the premises and alleged that they held the premises in 
trust for Jadviga Latozaj that defendant now holds legal title for 
certain beneficiaries; that John Latoza at all times had knowledge 
of those facts; that services, materials or labor furnished by 
John Latoza were not of a nature to create a mechanic's lien; that 
plaintiff paid no money to Latoza, has no real interest in the 
proceedings and is a mere dummy of John Latoza; that John Latoza 
abd Jadviga Latoza were narrled in 1935, and desiring an income- 
bearing property to support themselves in old age, Jadviga Latoza 
borrowed i3, 500 from Mona Himmelright, her daughter by a former 
aarriage, who is not a party to this proceeding, and purchased 
the premises in question; thet it vas understood that Jadviga 
Latoza should have a life estate in the property and upon her 
death the property would descend to Mona Himmelright in consideration 

99109b & tllifnijeXq Bdt lo notiois no fefl;« anol^qsox© bias islimsyo 

©»ioefi sn* "Xo noitioq :f.oilJ Bel's si iftjswsi^fc' tfnjsdbnelsi) ^cf iBeqqa 
-^rtiaaesaa £>na *a®^s;fni auXq SS«Se^,l4 lol n«ii ? ♦olnisdoesi a gniwolla 

«ni£{ iantR-g^ 8:faoo 

aJ^-l'i^eS *« •ealme'xc; sxl* Jbenvc iSliw slri ,80j£«rfS i-CIo^ fin* 

»ri? ffcMw it>4^i$ttoo Xsno ns oJiiI *»"tpjH« bad aso^bJ ndoL tisriJ 

no lodal J^iawoiisq &isb eX«l*i®3'sre bS'Ae.ienuJ niiJtaftiori* ^sod'jsJ nriot. 

,T2 :i8ts'guA no ©flijaa 6s;^©Xeaor> I»fls tps^d'Hoo fiJla'^ i^fcniE/ a«slK«ntq »xl!f 

MieXo flalX a *olnBxfo«»!n A SOIiTt ss^»tAi2 ^BS©! jOX i«cfo*oO nO ♦SSeX 

5is3 feengiss.:. 8561 ,3 i:^€fra»9®a ao feisa ^-toterrsri* 28,280, St lol 

,^lX;tnlsXo oJ asjtaXo 

«iew aeatoil® ©rf;f #,(5^3' B©iff9f> nswaffe 6©fcB9we s ^:fnaf>net9C! 

nl 3©bXb!6ic €>ri:t RXsri x®^* JexfJ BsgftXXs Bno asftlKStq «fl;f to siemro 

lol ©Xd"i* Xa^aX a.6Xod won tnaJ&n9'i©.6 Jsrij^ {jbsoJaJ j?^iv6sL not ;f5ui* 

©gfisXvon:^ BfiTf seflji;? XIs J^b ssoJeJ nrlot Jsxicf jaeitjsioitenscf fll3;fi©o 

ifcf &9«la intifl «tocf«X to aXfif^eJaas ti©r>i-n98 JBfId' |83^o.t1 esorW to 

^BilJ jnsiX e*oln«fI©Sffl .« ©*b©16 oS- s'is^jbu s to Son ©isv ssoJaJ ndot 

•ii? nl iastB^til l&»i en sjed ,sso;tsJ o;J ^snoiR on 51«q ttltf^nljaXq 

aaecfsJ nrloL Jaxl* jsso;fsJ jt!rioI» to Yeamfc sietB a al 6ne 88^Jtfio9oo^q 

-•©aoonl an sniTle9£) btiM ^S5@X ni J&dlT*ij»i ©tev Bxettd B-glvb»Xt bAM 

«se*aJ R^tvbRV «©§fl JbXo nl a©vX»anjexi3^ i'locqus o^ x*'*9<?oiq gcrl7J89Cf 

•xsanol « i^cf if>*dsi/is6 -jsri ^i-iijjl'iXeiriylH eno>' iBoit 006 1$| fcewoiiod 

A»«jari9iMg Bfljs ^anlBseootq elri* o;t Y^'J^S'^ b ;fon al oriw tBaBl-nM 

^Slv-Ofit Jsrf;f f>oo;tBi©J5inw ii»y *l fztlS (aolitescp nl ©ealBeiq ©rW' 

lexl floqw 5ft« Y*i»qo^cf ©riJ- nl ©te*a© ©tlX s ©yriI ftXuorie £SG:f»d 

nclJjRisfilBnoo nl ?ri>il'TXoimnlH artoM c* fcn90B»£» bXuow Y*T9rc^o• ©rf* fWseft 

of moneys advanced by her; that title was taken in the names of 
Charles Shukes and Polly Shiikes who held It as trustees for 
Jadviga Latoza; that it vee further understood that John Latoza 
and Jadviga Latoza would mutually manage and repair the premises 
and use income thereof, after payment of operating expenses, 
for support of themselves so long as John Latoza continued to 
live with Jadviga Latoza as husband and wifej that they did so 
manage the premises and make repairs by their mutual cooperation 
until shortly prior to the filing of the complaint herein when 
John Latoza is alleged to have become quarrelsome suid to have 
deserted Jadviga Latoza and stated he would file a large claim upon 
the premises to harass her and compel her to pay him a large sura 
of money, aid that this proceeding was brought for that purpose* 

The plaintiff did not file a reply to the answer of the 

Upon the entry of the decree by the court Joseph D, 
Stewart appealed from it and urges that the court erred In. that 
portion of the decree finding that John Latoza paid |1, 496,22 for 
materials and services, alleging it to be contrary to the v/eight 
of the evidence, and that the portion of the decree directing 
defendant to pay #1,496»22 together with Interest and costs and 
finding that plstintlff has a mechanic's lien for that amottnt le 

Defendant urges, in support of his suggestion of error, 
that the Illinois Mechanic's Lien Act does not permit or create 
a mechanic's lien for moneys loaned or advanced to persons for the 
/ payment for materials and services furnished uoon real estate; and 
that, therefore, that portion of the decree ordering a mechanic's 
lien is erroneous,. 

The facts in this record as suggested are that the court 
entered a decree suid found the premises in question to be the 
property of Jadviga Latoza and that John Latoza vas her husband. 3^2 

^a»8n«qx» juild-Biaqo to Jneax^Q is;fls ,^08tsiitf eaioofli 9bu ba» 

«^ JbQUiilitnoo esotfsJ rnloX. aa 30OX oa Bsvlesmari;? to *noqq«8 lot 

- ea bib x^ti^ ^sitit {bIIv bas. btmdauA as &set»d i&'glvbBJi Ailv evil 

aoi^sisqoco iBV^tust 'Zi9ri;f ^cf enlBq^'i 9jLam ba» ssaXfflS'xq eilt ssaqbb 

flsitw aiaitefl (^nlBlqiEoo sxi^r tc gnlXlt »xlJ o* loJtiq x-^^'xoda lltau 

Br&A gJ fiifta sffiOBls-iiBAjp ©ffioo««f »YjaJi o3^ J&aselXj* ai ssoJaJ ndoL 

noQii elaXo e^ifiX « 9Xit £>Xx/ow exi ^^f^^a i>£i^ jQ,so;t£j ji^iv^aL £>9;}''X9ae£> 

ffSfs astfiX « mid x&q o3 t9ti Xeoiroo x>sui lexl asftisii 0^ saaia^nq 9X1^ 

^seoqriwc *«ri* lot isiguoia asw sflJLfcaaooio aXxiJ i-flcj tm ^'^anoxn to 

ari* to iswBfl* «il;f 0? xXqai « slil ;fofl J&iJb ttiit«Jt«|q axCT 


*CI xIa»8oX. Jiwco ericf yd Bsioab Btii to \iJii» exi^ aoqU 

isdi at bQ'rnB tinoo »Ai issii asgij;; fjiua Jl aorrt XjeXsaqca :ttair%tQ 

•sot SS,8e^^X| blBcr Bsoi&d odoT* ;lBil* gnifinit ss-xoafi pdi to aol^-ioq 

Jrigiew sri^f o3 leisiJjsoo sd c;f ;fl gnisaXLs ^asolv^ea fins BXBiial«a 

snliJ^oaiiJb ©sioefe ari? to nold-ioq oriJ i^ds J&xis ,ao£[G£>lv-e aii^ )o 

iKCiA a;rBoo bam iaeiBt al dilv *i&dio^ci 5B*QQ^^£9' faq o^ ia&ba9tBb 

ai ;Jn»om6 J^? ttoI neiX a'oiiisrioeffl « sax! ttid-nijaXq ;fjsriJ giilJbnlt 


t'loi'xe to flolJaogaua bIA tc Jioccjwa ai ^aeigii; ;fnA£)a9taCI 

eJesno 10 Jiansq ^on asob i^oA nslJ atoixuxioeM elonlXXI exiJ 3'jwli' 

sii^ tot anosieq o^ fteonAVbe ic l>aiX6oX aTtenos Tot xiaiX a'oixiiMioWJ « 

£>n£ ;»;rfi:rB!^ Xaei noqi; Jbexleifiix/t saoivxea l>nf. aX/siielfiffi lot ia^MilBq 

a'oifuaxioam & "gatiBbto aeioaf) «dt to noiJioq JjexIJ ^anoto-xarW ^i&Ai 

^auoencnie ai naiX 
;fiiroo &ii;r JaiI^ »>i.8 Jbe^aag^cjue &£ biooei aid^ ixi al03t axlT 

QiiJ ©d oJ noX:}^3©iip nl aaaiitPiq ^At 6m«ot bOA e9*io»b a fiaieJne 
2^St •f'apdauxl laii eav bsoJbJ 01IOL ^TaiiJ' £)n.« JUiOi»d ai^lvbaZ to x^isctc^q 


The decree further found that because J^ecti on 8 of the Husband 
and Wife Act (Cfhapter 68) John Latoza waa not entitled to receive 
any compensation for labor perforned and services furnished to 
hie wife*s property. 

The decree was entered on the motion of the plaintiff. 
The mechanic's lien allowed to the olalntiff i^as not for materials 
or services furnished to the premises, but for moneys alleged to 
have been borrowed from the plaintiff by John Latoza and in turn 
alleged by him to have been paid to other contractors, in the sum 
of $1,496,22, The defendant, however, contends that said moneys were 
not paid or advanced as abowe stated, and that even though the 
moneys were so advanced by plaintiff, plaintiff did not acquire 
a mechanic's lien by reason of such moneys advanced and so loaned^ 
The defendants urge that the plaintiff has not proved by a pre- 
ponderance of the evidence that John Latoia paid $1,496,22 allowed 
in the decree, or any amount, for the materials, services and items 
which make up the total of II) 496,22 allowed in the decree; that 
the only witness offered by the plaintiff to prove the payments by 
John Latoza of ^*1, 496^22 allowed in th* decree was John Latoza himself <, 
It is testimony that it is alleged is not supported by that of any 
other witness, and that it is not to be believed, for the reason 
that disinterested witnesses testified categorically to the contrary, 
and it is urged that John Latoza's testimony is false and untrue, 
and they point to the following evidence that appears in the record: 
He testified that the property in question belonged to Charles 
Shukes, and that Shukes ordered him to make repairs on said property 
at the rate of 11,50 per hour for his labor. Charles Shukes, who 
was disinterested in the outcome of these proceedings, flatly 
denied this, and stated that he took title only at Mrs, Latoza's 
request, that he never asked Mr, Latoza to mWte any repairs and 

that VlT^ Latoza never asked him for money for any material or 

" 273 

evisoot ot feaXtftns cTofi »i^w »s©fjaJ ftricX. (80 teJaariv) *9A ellV fia« 

^^a^iftqoncr eUliw Bid 
♦l^iJnlsXq eii;t to noiJca ftrfcr no J&sistns asw ee'roob sriT 
•Isln9?3«v 101 ?on s&v t'iltal&Ia bA9 ot Byswlljs nejil s^oln&iioaa •xlT 

antuJ ni iras AsoStcJ rnloL ^fcf Itld-niaXa ©fti? atci'i J^evoniocf neetf •ysfl 

BUB 9jiJ ni 4«icJo®id'floo ladcfo oi blsq aeed eveil o:t mlA xd J&9s«ils 

•isw a-^eiKtti blBB ^sitt efccsd-noc jievawori ,4J-iial>«9t8f> ©xlT ♦SS.dG^^Xt lo 

9£i^ d^cxi? n»T» tadi b&B ^betts^^a «vo€f.e a« btonsiYba to btaq toa 

«'siMoas :fon bib ttlitit&Iq ^Itl^al&Iq x<i b9on»vbB oa ©^©w BTtenom 

,ifi©nBOl ©a Sins bsoaAVbn ^xsaom douB lo flOBs9*£ t^ nell a*oinflrio«ffl « 

--910 B Y,cf Jb^TOTg 3'Ofl aari tttSalBlq »dJi iAdi sgiu e^'naBnelsi »ilT 

5dwoIIs S2,9G*^<X* 6jL«q aao^fsJ odoX. JsrlJ eoneiiiv© •xl;t to frOflBisftnoq 

so«*X fins '8«oxT^e8 jeXeliftd-jftH! eri3" lot ,?ni;oaiB xis "Jc ^eenoefi ©il* nl 

:f«?rl* j«v9ioel5) ©rlJ nl bevaltm SS,8e*'|I$ "io Xb*o* »r(J cu sjIbb rlol^w 

Tjcf B^nsffitBCf' ^di CV010 03' I'il^JnlsXcr erltf ijd" l>»rrel1to aaenJiw xXno erii^ 

♦tlsaaiX/i jsao^flJ nxIoT. asw eetoeB *ri* al fievoIXje SS^SPJ^^Xt to bso^aJ adoh 

Xti& to teri? Yd 6«*T©qg«8 ton ai fees^-^-Ta *Ji -^Jt *J5ri* '^ncfiixtfeeJ aX *I 

noaA8i 9dt lot i&evpXXed ed c# *oii al ?X 3'iSirfi' ftae ^aasni^Xv i9ilJ"o 

^%iiin3aoo oflJ oJ %x£siOltc%9i»o fieXti*8«Jf B9ea«n3Hw fieifasietfnialb *bi!* 

^euttau btiB aaXfist bX xaosjtise:} &^&&ci&d nrfoL ied:f be-^iuBl tl fin* 

jfiTEOOsi «rf3 ni aiseaqs t&dt eDaebXvs gniKoXXot exit o? *nloq x^^* *o« 

asImt^Q o;)" ItsgnoXacf noliaeup nl xcTieqovi^ di{(f iadi Imiti^as^ el 

X^ieqcnq bias no atlsqei sisas o3" «lil Aeiebio aejlJMlS ^ai[^ Ana ^asjUnfS 

oiiw <«8aaifte asXifliiO c'xodjRl alxl tot Tuori ^tq Ofi^X^ to eJai »ri* *s 

XX-^^Xt ^agnlfjeenonq 0»»^ t© 8ttoo;r«o 8/1^ a X f)8*a&^9J^laiJi ••» 

bUsoJjbJ ♦8iM Ja xXno sXJiJ aloo* 8ri *ail;r 6fl*a*a btiA ^aldi feslnafi 

Jbrta eiiaqfti x«^ ojIjSg) cJ bxo*sJ ¥«rM fisia* "!«T*»ife 8fl ^pri? ^Jaeupart 

to .Ciiila©3"*ici xni* loT^ x*flc;«n lot mXri Iieolas "seven aso?.^ ♦lii ;fAiII 

labor furnishea*^ Polly Shtikes, wife of Charles Shukes, testified 
that ehe and her husband were to hold title for Mr, and Mrs, Latoza* 
She further stated that she and her husband never out any money 
in the property and never asked Mr, Latoza to do any work on the 

It is evident, as suggested by the defendant, that Jo^n 
Latoza knew the property was owned by Mf», Latoza and not by Charles 
Shukes, The plaintiff testified that John Latoza told her that he 
and his wife, Jadviga Latoza owned the property, and that he, John 
Latoza, desired to borrow $2, ©00 from the plaintiff to repair the 

John Latoza testified to work done by Frank H. Leonhardt 
and to further payments made to him; also to South Center Plumbing 
& Heating Supply Co.j to Rudolph Lindvall; to Columbus Coal Gorapanyj 
and to A & A Boiler Works* 

Frank H, Leonhardt, a disinterested witness, denied doing 
any work on the building or receiving any money* The following 
other disinterested witnesses also denied Latoza' s testimony 
concerning payments of money to them by John Latoza and further 
testified that Mrs, Latoza made all payments to them? William 
Cohen, oresident of South. Center Plumbing & Heating Supply Go.j 
Rudolph Lindvall; Frank ^, Dring, president of Columbus Coal Co,; 
and Abraham Sokoloff, treasurer of A/ A A Boiler V/orks, It appears 
also that Latoza testified he worked on the building in Question 
from July 21, 1936 to July 27th, Inclusive, notwithstanding that 
piefendant's Exhibit 1, being a mittimus issued out of the /Superior 
Xourt of Cook/ounty, Illinois and admitted to the record, bore a 
return of the sheriff that said John Latoza, the respondent named 
in said writ, xiras committed to the Cook County Jail, pursuant to 
the comTiand thereof, on July 20th and was not released from custody 
until July 28, 1936* 


• fiso;t«i.I »eiM £>xu» .'sM io^ elili Moil o? ©isw I>flacfaiiri iqA bnB 9tiB i&A) 

X9nQ9i xtta tva_ "seren fefladewri "laxl ftos o4a *BriJ beS^jsS^e i©ri;tii/T: eriS 

•itr «o jfiow TjfUB ofc oi" bso^jbJ .iM &ej{ad leysflnftxis ■^ifi^qo'xq «rW ni 

eeliiixiO x<S ion ba& »SiOf&d «9^M xd benvo saw x^'^sqoiq ari^ waaa( sso^aJ 

©iS tfcxi^ lexl 6Xo;r jBsojraJ nxlol. ^jsild' bettliast JlLlial&lq 9dT ,863tojrf8 

ndoL ^Bci ;t&£i;i b£i& ^^itiaqoic ©xi;f fcsnwo aaoJ«J «§Xv£»bL ,sliw airi baa 

tidi lisqei oJ t'Si:fnijBXq 9Ai moil 000, 2| woTiocf oi feaniaa^ ,j»ae^£j 


QflicfffiKX^ laJnsO situo8> oi osXa jaixl ocf: 8£>j3iB Qin&ax&o; tsd^tiut oi bn& 
IXa&iiiaoO X&oO Qvdmul ; f XerBniJ dqXcxbiifl oi {,oD x-CqwS gniJaaH A 

♦aaLnoV/ laXloa A * A oJ 6ns 
sxiiol) belnsi) ^BaonSlv fceitasie^nXalfe a titfioerinoeJ ,H iasi'^ 

8«iwoXIo"l »xiT ^-^jsnom x«^ aflXvieoe'i 'to gnXJ&Xiwd effJ no itov xna 

xaomtisei s,^&soi&d belneb oqXa 8»aeen;lXw beHasistali&lb lexiifo 

texii^ut bttB Bsoi&d atioXt ^tf medtf o* x^^csffl lo aJnaoTEBq gnlmsonoo 

isbIIIV^ Imedi o'^ ataemx&q lis ©J&ain Muci&d ,8iM ^eili' bBltliBSt 

l«oO ^XqcjuS anlJa^H i& -gnidmsll lein^O {HuqS, to JneftJEsenq ^nerioO 

j.oO XacO awdfiuXoC "to d-naJbiseiq ^snliQ ^^ in*-!'^ ;XX3v6nlJ riqXoBjjH 

Qinaqqia, il .a^to^f' aeXloS A A \a to lanuaaeiJ ^ttoXcJioe asilcidA fcna 

aolineuo al :^atblJLsj<i sAi no l>ej{iow ad .&ei'iX}6&;r asoifsJ ^MtH oaXa 

*AdJ 8iili>na*sii;/iw;fon ,»viaiiXonl ,x«V2 iXi/t, cJ dsex ^X2 ijXtft monl 

tolieqi/Ov sd;t la *juo b&uasl Bumliilm b gnled j^X JXdixixX s'^ns^nelatl 

s eicii ^Moo6i 9rl;f o;!' bs:i31mb& baa aionlXXl ,^;fnjJoSi^ looO to J^ixro\ 

ftoflwn d^fldlinoqaei aiiif ^asoi^bJ aiiot* £>li^a ^t&di IIXisiIb sricT lo nii/^en 

odt Jnjw/aijao .Xiat. )j3"n«oCi jfooD oii:r oJ b^iilmmoo a/iw t;fX'iv f>^sa fli 

xXo:J-a«o ffio^ij fiflaBeXsyi :fon saw tins ri^OS TtJCw^ oo gloaieilJ fcaaomoo »/!*• 


The defendsnt further suggests that from this record the 
testimony of John Latoza 1b proven false and that no part of the 
iane can be accorded any weight because none of his testimony was 
corroborated by any other witness* Thompson v^ Northern Hotel Oo «, 
256 111. 77j Hadley v. VJhlte. 367 111. 406» The defendant offered 
positive testimony that John Latoza did not pay the Items which 
made up the total of 1^1,496,22 that is allowed in the decree, and 
&a to $536*66 of that amount the witness Lindvall testified that 
It was Mr8» Latoza who paid it to him. As to the balance of the 
itens which make up the sum of i;!!, 496* 22, Jadvlga Latoza testified 
that she paid for them with moneys collected out of the rents or 
borrowed from persons not parties to this oroceeding. 

In the case at bar the chancellor approved the master's 
findings, and suwh findings approved by the chancellor will not be 
set aside xmlese manifestly against the weight of the evidence. In 
passing upon these questions the master in chancery sees the 
witnesses who appear before him, and has a better opnortunity to deteiv 
mine the credibility of the witnesses than the Appellate court. 
He can pass upon the manner of witnesses in testifying, their 
oonduot on the witness stand, their apparent truthfulness, or lack 
of truthfulness, etc., which are matters incapable of review by 
this courty 

In the case of Pasedach v^_Auw . 364 111. 491, the 

Supreme Court saidJ 

I "The master in chancery saw the witnesses and heard 
[them testify. It was his province in the first instance to deteiraiine 
|the facts, while his finding of facts does not carry the same 
weight as the verdict of a jury, nor of a chancellor where the 
witnesses have testified iJbef ore him, yet the master's findings are 
entitled to due weight on review of the cause* ( Keuper, v ^^ Mette ^ 
239 111, 586^ His conclusions as to the facte have been approved 
by the chancellor. In that situation we are not justified in 
disturbing the findings unless they are manifestly against the 
weight of the evidence. North Side Sash' and Door Go« v« Heehtf 295 
111, 515; Kelkamp v. Kelkamp . 275 id. 98." -^r-— 


»il* btooei 8 Mi BoiTt ^&rit eJ39;§si/a TftrftTwt fasLas^eb erfr 

erlj "to J^«g on itBdiT fcna ©Bl«t neTc: ^oS^aJ niloT. to Ttnoinlifas^ 

ZtiotsttatBi aid lo enon es&^oscf id-gia-^-r xdB JbeMoooa ecT nad duu^e 

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rioiilw Bm^ii 9dt -^c *on fclft &seSsJ ndoL t^dt xnoml^aei sviJJtaoq 

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,cc ,ix uv.: yaffi%a^ '■H.,^ L^ifti44:?->^ ;iii- *^^i^^ 


To the like effect Is Srain&rd v. Bralnard . 373 111. 459, 


The plaintiff in this case has filed an additional abstract 

herein so that this court can review the facts presented to the 
master. Defendant failed to incltidc in the record the exhibits 
introduced before the master and which were considered by him in 
making his findings. Plaintiff calls attention to the fact that 
the additional abstract contains the testimony of all the witnesses 
who testified in this case and particular attention is called to the 
testimony of John Latoza and Bemloe Paul, called as witnesses 
for the plaintiff, and to the testimony of Jadviga Latoza oftlled as 
a witness for the defendant. An examination of the testimony of 
these three witnesses will readily disclose the real issue in this 
case as well as the defense interposed thereto. The plaintiff 
also calls the court* s attention to the fact that the exhibits In 
the ease, lettered A to L, are important and examination of the 
exhibits will disclose that in a majority of instances the material 
was billed direct to John Latoza, and the court's attention is 
called to the failure on the part of the defendant to supply the 
court with the complete abstract of the entire record. 

When we come to conaiaer the facts as they are called 
to our attention by the abstracts such as were prepared by the 
plaintiff and defendant, it cannot be said that the trial court's 
decree is against the manifest weight of the evidence. 

The plaintiff contends that she does not claim a mechanic's 
lien for moneys loaned or advanced to persons for the pajrment of 
materials and services furnished upon real estate, but claims that 
John Latoza was a general contractor as found by the master and 
chancellor, and that plaintiff is entitled to recover ^ny and all 
amounts paid by John Latoza for material or to sub'y'contractors. 

Of course, as it is suggested, an original contractor Is 
one who enters into an express or implied valid contract with 

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'^■.^_ - — 

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% \ 

... _ ^- . .<i^"^* £*u^. '^^,^7] 

the owner of real property or his duly authorized agent, or with 
one whom the owner has icnovxlngly pennltted to contract, for the 
constmotion of an imorovement and the furnishing of labor and 
material thereon* (Sec, 1, ^h^ 82, -Surirth-^lQpSJ-a' Revl&etj- Sta 


The court found by its decree (Psr, 8) that was entered 


"JjsLdylga Latoza entered into a verbal contract with the 
said John Latoza to do the necessary repairs, improvements and 
alterations to be^ made in and upon said premises and to furnish 
the necessary materials therefor. That after the said Charles 
Shukes and Polly Shukes had taken title to the aforesaid premises, 
I the said John Latoza, Jadviga Latoza and the said Shukes examined 
\ said building and cremises and discussed the necessary repairs, 
; alterations and improvements to be made thereon. The court further 
finds that in_jiccord3nce with said verbal contract, the said John 
Latoza with the knowledge, consent and nermission of the said 
Charles Shukes and Polly S^^ukes, on October 16, 1938, commenced 
repairing, improving and altering said premises; that the seid 
John Latoza worked in and upon said premises from time to time for 
approximately two yearsj that during said time the said Jadviga 
Latoza and the said Shukee visited said building on many occasions 
and discussed with him the repairs and improvements," 

And further, oaragraph 11 of the decree findsl 

"That the said John Latoza oaid the following Qt'rapanies 
\ for materials furnished and labor performed in connect ioh with the 
\ installation of said materials and repairs upon said premises, 
[ to-wit: (naming comoanies and amounts)," 

■ It is contended by plaintiff that John Latoza was an 

original contractor, that he hac! the right to hire eub-^lcontraotors 

and to purchase materials in order to make the repairs under his 

contract and that to say that he could not recover for moneys 

expended by him in doing so would defeat the puroose of the 

Mechanic's Lien Act.« 

On the question as to the defendant's appeal from the 

portion of the decree allowing a mechanic's lien claim for ^1,496,22, 

the plaintiff a -mits the contention made by the defendant that the 

plaintiff could have no mechanic '^s lien for mere advancement of 

moneys to pay for materials and labor. In the plaintiff ^s brief 

we find this statement in bold face type: "Plaintiff does not claim 

a mechanic's lien 'for moneys loaned or advanced to persons for 

the oayment of materials and services furnished upon real estate,'" 

h" ci> ■ Ji »^ 

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